Derrick Jacobs v. City of Philadelphia

NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 24-1696 ___________

DERRICK U. JACOBS,

Appellant v.

CITY OF PHILADELPHIA; PHILADELPHIA DISTRICT ATTORNEY’S OFFICE; LAWRENCE S. KRASNER; TRACY TRIPP, Assistant District Attorney, In Her Official and Individual Capacity; LIEUTENANT JASON HENDERSHOT, In His Official Individual Capacity; INSPECTOR D F PACE, In His Official and Individual

|Capacity; DENNIS WILSON, In His Official and Individual Capacity

____________________________________ On Appeal from the United States District Court for the Eastern District of Pennsylvania (D.C. Civil Action No. 2:19-cv-04616)

District Judge: Honorable Harvey Bartle, III ____________________________________ Submitted Pursuant to Third Circuit L.A.R. 34.1(a) on February 12, 2025

Before: BIBAS, MONTGOMERY-REEVES, and NYGAARD, Circuit Judges

(Opinion filed: February 20, 2025)

____________________________________

___________ OPINION * ___________

PER CURIAM

Derrick Jacobs appeals the District Court’s order granting Appellees’ motions for sum- mary judgment and denying his motion for summary judgment. For the reasons that follow, we will affirm the District Court’s judgment.

The procedural history of this case and the details of Jacobs’s claims are well known to the parties, set forth in the District Court’s memorandum, and need not be discussed at length. Briefly, Jacobs was a detective assigned to the Officer Involved Shooting Investi- gation unit (“OISI”) of the Philadelphia Police Department and investigated a shooting involving Officer Ryan Pownall. Jacobs disagreed with Appellee Assistant District Attor- ney Tracy Tripp’s presentation of the shooting to a grand jury. The grand jury recom- mended that charges be brought against Pownall, and during a later “bypass” hearing, his lawyers made comments which led Tripp to believe that an OISI detective had leaked grand jury information.

Jacobs asserted that on the day of the bypass hearing, he consulted with an attorney in an attempt to report acts of corruption and criminality. Jacobs admitted that he was pre- sent in the building on the day of the hearing and that no one knows what he said to Pown- all’s attorney. Jacobs was called before the Pownall grand jury and was questioned on whether he spoke to Pownall’s attorney. Jacobs invoked his Fifth Amendment privilege against self-incrimination. Jacobs was never arrested, charged, or indicted.

Jacobs later participated in a podcast and made statements about the OISI unit and his work on the Pownall shooting. He criticized Tripp and accused her of being corrupt and providing false information to the grand jury. As a result, Jacobs was charged with violat- ing the Philadelphia Police Department’s Disciplinary Code. He retired before a hearing on the charges was held.

Jacobs filed a civil rights complaint, and after two appeals and remands, four claims remained: two claims of retaliation for exercising his First Amendment rights, a § 1983 conspiracy claim, and a state-law whistleblower claim. See Jacobs v. City of Philadelphia, 836 F. App’x 120, 122–23 (3d Cir. 2020); Jacobs v. City of Philadelphia, No. 21-2314, 2022 WL 1772989, at *3, *5–6 (3d Cir. June 1, 2022). On Appellees’ motion, the District Court dismissed the whistleblower claims. Appellees and Jacobs then filed motions for summary judgment. The District Court granted Appellees’ motions for summary judgment and denied Jacobs’s motion. Jacobs filed a timely notice of appeal, and we have jurisdiction pursuant to 28 U.S.C. § 1291.

First Amendment retaliation claim against Tripp To support his claim of retaliation, Jacobs needed to show (1) that he engaged in conduct that was constitutionally protected, (2) that Tripp took action sufficient to deter an ordinary person from engaging in the conduct, and (3) a causal connection between the two. See Palardy v. Township of Millburn, 906 F.3d 76, 80–81 (3d Cir. 2018). Jacobs con- tended that Tripp prosecuted him after learning that he had spoken with an attorney about exposing corruption. The District Court noted that the First Amendment does not protect speech that violates grand jury secrecy and that Tripp had a good faith reason to believe that Jacobs had made statements to Pownall’s attorney that violated grand jury secrecy. It also observed that there was no evidence of retaliation and that Jacobs was never prose- cuted. 1

In his brief, Jacobs focuses on whether there was a grand jury leak and rails against alleged corruption in the District Attorney’s Office; he does not, however, challenge the District Court’s dispositive conclusion that there was no evidence of retaliation. Thus, we will not disturb the District Court’s grant of summary judgment on this claim. 2

Jacobs also contends that the District Court erred in not allowing him to amend this claim based on new evidence. He asserts that an investigation into the practices of the District Attorney’s Office found that a unit of the office had misled a court in an unrelated case. Jacobs suggests that this is an example of the corruption he was trying to expose. This evidence, however, does not undermine the District Court’s conclusion that Tripp’s actions did not constitute retaliation.

First Amendment retaliation claim against Police Appellees We now turn to Jacobs’s First Amendment retaliation claim against the Philadelphia Police Appellees. Jacobs asserted that these Appellees retaliated against him for his state- ments during the podcast by bringing disciplinary charges against him. In granting sum- mary judgment to Appellees on this claim, the District Court described the sensitive infor- mation that Jacobs revealed and how he did not have permission to disclose it. The District Court concluded that Jacobs’s statements during the podcast were not protected speech. In addition, the District Court concluded that, even if the speech were protected, Jacobs did not suffer retaliation because he retired before the disciplinary charges went to a hearing.

On appeal, Jacobs argues that his situation is similar to the plaintiff in Javitz v. County of Luzerne, 940 F.3d 858 (3d Cir. 2019). In Javitz, we addressed whether a public employee was speaking as a private citizen or pursuant to her official job duties. Id. at 867. Here, however, the District Court’s disposition of this claim did not turn on whether Jacobs spoke as a public citizen. Rather, the District Court determined that his speech was not protected because it seriously undermined the working relationship between himself, his superiors, and the District Attorney’s Office. Thus, the Appellees’ interest in restricting the speech outweighed Jacobs’s interest in speaking. See Pickering v. Bd of Educ., 391 U.S. 563, 570 n.3 (1968); Munroe v. Cent. Bucks Sch. Dist., 805 F.3d 454, 472 (3d Cir. 2015), as amended (Oct. 25, 2019). In his brief, Jacobs does not challenge the District Court’s dispositive de- termination that his speech was not protected because of its disruptive nature. Accordingly, we will not disturb the District Court’s grant of summary judgment on this claim.

Conspiracy claim While Jacobs argues that the District Court erred in dismissing his conspiracy claim, he merely refers to the rest of his brief. We do not consider undeveloped arguments. See Barna v. Bd. of Sch. Dirs., 877 F.3d 136, 145–46 (3d Cir. 2017) (“[W]e have consistently refused to consider ill-developed arguments or those not properly raised and discussed in the ap- pellate briefing.”); Doeblers’ Pa. Hybrids, Inc. v. Doebler, 442 F.3d 812, 821 n.10 (3d Cir. 2006) (noting that “passing and conclusory statements do not preserve an issue for ap- peal”).

Dismissal of claims against the City of Philadelphia Jacobs contends that the District Court erred in dismissing the claims against the City of Philadelphia because District Attorney Larry Krasner had knowledge of the purported criminal activity against Jacobs. We have already concluded that, with respect to Jacobs’s § 1983 claims, Jacobs had not alleged any facts plausibly suggesting that Krasner was per- sonally involved. See Jacobs, 2022 WL 1772989, at *3 n.7. And, as discussed below, Ja- cobs’s whistleblower claims against Krasner were properly dismissed by the District Court.

Recusal Jacobs also argues that the District Court erred in refusing to recuse. We review the District Court’s decision to not recuse itself for an abuse of discretion. Securacomm Con- sulting, Inc. v. Securacom Inc., 224 F.3d 273, 278 (3d Cir. 2000). Jacobs discusses at length several rulings the District Court made that were not in his favor. Jacobs’s dissatisfaction with the District Court’s legal rulings against him, however, is not a sufficient reason for recusal. Id. (“We have repeatedly stated that a party’s displeasure with legal rulings does not form an adequate basis for recusal . . . .”).

The only allegation not based on a legal ruling is Jacobs’s assertion that the District Court “called security” on him during an in-person conference. Appellant’s Br. at 17–18. In denying Jacobs’s motion for recusal, the District Court explained that it is its practice to have a security officer present for in-person conferences when there is a party proceeding pro se. Jacobs has not shown that the District Court abused its discretion in refusing to recuse.

Whistleblower claims Jacobs contends that the District Court erred in dismissing as untimely his claims brought pursuant to the Pennsylvania Whistleblower Law. Jacobs admits that the statute of limitations for his whistleblower claim is 180 days. He argues that the statute of limitations should run from the date that Tripp informed Jacobs that he would not be charged in con- nection with the alleged grand jury leak. Jacobs, however, conflates the statute of limita- tions for a Pennsylvania whistleblower claim, which runs from the date of the alleged vio- lation, see 43 P.S. § 1424(a), with a federal § 1983 claim for malicious prosecution, the statute of limitations for which would run from when the criminal proceedings end in the plaintiff’s favor. See Coello v. DiLeo, 43 F.4th 346, 355 (3d Cir. 2022). Here, the date of the last alleged violation by Tripp and Krasner was October 16, 2018, see Appellant’s Br. at 29, which is more than 180 days before Jacobs filed his whistleblower claim in October 2019. Moreover, the District Court also dismissed the whistleblower claims against Tripp and Krasner because they were not Jacobs’s employer as required by the statute. See 43 Pa. Stat. and Cons. Stat. Ann. § 1423(a) (West 2024) (“No employer may discharge, threaten or otherwise discriminate or retaliate against an employee . . . .”). Jacobs does not challenge this independently dispositive conclusion. 3

For the above reasons, we will affirm the District Court’s judgment. 4 Jacobs’s mo- tions to file a supplemental appendix and supplemental brief are granted and his request for oral argument is denied.