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ELLIOTT v. BLOOR

December 30, 1976

CHARLES H. ELLIOTT
v.
W. SPENCER BLOOR



The opinion of the court was delivered by: BECHTLE

 BECHTLE, J.

 Plaintiff brings this action against his former supervisor seeking to redress an alleged deprivation of his property right to continued employment without due process of law, in violation of the Fourteenth Amendment. Presently before the Court is defendant's motion to dismiss the complaint for failure to state a claim upon which relief can be granted. Specifically, defendant contends that plaintiff's dismissal from employment did not constitute state action and, hence, is not subject to judicial scrutiny under the Fourteenth Amendment. Also before the Court is plaintiff's motion to amend the complaint and to add Leeds and Northrup Company, Incorporated ("Leeds"), his former employer, as a party defendant.

 On March 29, 1969, plaintiff was hired by Leeds as an engineering computer programmer. Plaintiff remained with Leeds until June 23, 1972, when he was informed by his supervisor, defendant Bloor, that his employment with Leeds was terminated and that he would be arrested for trespass if he attempted to reenter Leeds' premises. The next day, plaintiff returned and made an attempt to enter through Leeds' Technical Center gate. He was prohibited from doing so by a security guard, who had been previously instructed not to permit plaintiff to enter the premises.

 On January 7, 1976, plaintiff filed a pro se complaint which alleged that, as a result of his dismissal from employment at Leeds, he was deprived of a property right in violation of the Fourteenth Amendment's guarantee of procedural due process of law. It further alleged that defendant's threat to have plaintiff arrested for trespass, and defendant's order to the security guard, who was licensed by the Commonwealth of Pennsylvania, to not permit plaintiff to enter the premises, constituted "state action" within the purview of the Fourteenth Amendment. Defendant filed his answer on March 11, 1976, and, on April 26, 1976, he filed a Rule 12(b)(6) motion to dismiss for failure to state a claim upon which relief can be granted. *fn1" On June 18, 1976, plaintiff filed a motion to amend the complaint and to add Leeds as a party defendant. On September 16, 1976, plaintiff filed a motion to withdraw his June 18 motion *fn2" and a second motion to amend the complaint and to add Leeds as a party defendant. The proposed amended complaint alleges that, as a result of his dismissal from employment, plaintiff was deprived by Bloor and Leeds of both a property right and liberty interest, *fn3" in violation of the Fourteenth Amendment. It further alleges, in proposed paragraph 8.2, as follows:

 
In terminating Plaintiff's employment, Defendants [Bloor and Leeds] acted in contravention of Pennsylvania common law, which permits an employee with an employment contract for an indefinite term to seek modification of that contract without limitation; the Agreement between Leeds and Northrup Company, Inc., and the Professional Engineers and Scientists Association (PESA), which provides for employee grievances; and, the Free Speech Clause of the First Amendment to the United States Constitution.

 It also restates the above-mentioned state action allegations. *fn4"

 Before we begin our discussion of the issues raised by the motion to dismiss and the motion to amend, it should be noted that, in a civil rights case such as this, a plaintiff is required to plead facts with specificity in order to withstand a motion to dismiss. See Rotolo v. Borough of Charleroi, 532 F.2d 920, 922 (3d Cir. 1976); Kauffman v. Moss, 420 F.2d 1270, 1275-76 (3d Cir.), cert. denied, 400 U.S. 846, 27 L. Ed. 2d 84, 91 S. Ct. 93 (1970); Negrich v. Hohn, 379 F.2d 213, 215 (3d Cir. 1967). It is also true, however, that the allegations of a pro se complaint are not held to the same rigorous standards of pleading that are applied to those drafted by an attorney, Haines v. Kerner, 404 U.S. 519, 520, 30 L. Ed. 2d 652, 92 S. Ct. 594 (1972) (per curiam), and that such a complaint should not be dismissed unless it appears "beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Id. at 521, quoting Conley v. Gibson, 355 U.S. 41, 45-46, 2 L. Ed. 2d 80, 78 S. Ct. 99 (1957). See Estelle v. Gamble, 429 U.S. 97, 97 S. Ct. 285, 50 L. Ed. 2d 251, 45 U.S.L.W. 4023 (1976). It is with awareness of the above precepts that we now address defendant's motion to dismiss and plaintiff's motion to amend.

 Motion to Dismiss

 In order to maintain an action under the Fourteenth Amendment against a nominally "private" party, the plaintiff is required to establish that the defendant's allegedly unconstitutional act or acts constituted "state action." *fn5" This state action requirement may be satisfied if either of two conditions is met. First, state action may be found where "there is a sufficiently close nexus between the State and the challenged action of the regulated entity so that the action of the latter may be fairly treated as that of the State itself." Jackson v. Metropolitan Edison Co., 419 U.S. 345, 351, 42 L. Ed. 2d 477, 95 S. Ct. 449 (1974). See Moose Lodge No. 107 v. Irvis, 407 U.S. 163, 176, 32 L. Ed. 2d 627, 92 S. Ct. 1965 (1972); Hollenbaugh v. Carnegie Free Library, 545 F.2d 382, slip op. at 4 (3d Cir. 1976); Broderick v. Associated Hospital Service, 536 F.2d 1, 4 (3d Cir. 1976). Second, state action is present where the state and the defendant have entered into a symbiotic relationship, in which the state has "so far insinuated itself into a position of interdependence with [the defendant] that it must be recognized as a joint participant in the challenged activity . . . ." Burton v. Wilmington Parking Authority, 365 U.S. 715, 725, 6 L. Ed. 2d 45, 81 S. Ct. 856 (1961). See Jackson v. Metropolitan Edison Co., supra, 419 U.S. at 357-358; Moose Lodge No. 107 v. Irvis, supra, 407 U.S. at 175; Hollenbaugh v. Carnegie Free Library, supra, slip op. at 2, 7; Broderick v. Associated Hospital Service, supra, 536 F.2d at 4 n.15.

 An examination of the original complaint reveals no allegations that the Commonwealth of Pennsylvania in any way fostered or encouraged, via regulation or otherwise, the termination of plaintiff's employment by defendant. The question that remains, therefore, is whether there exists a symbiotic relationship between defendant and the Commonwealth of Pennsylvania. Plaintiff relies on the allegation that the security guard who barred him from reentering the premises was licensed by the Commonwealth of Pennsylvania. That fact alone is patently insufficient to support a finding of state action under the symbiotic relationship test. *fn6" Accordingly, defendant's motion to dismiss the original complaint will be granted.

 Motion to Amend

 "[It] is clear that the Court need not grant a motion to amend if the complaint, as amended, could not withstand a motion to dismiss." Bernstein v. National Liberty International Corp., 407 F. Supp. 709, 715 (E.D.Pa. 1976). Since, for the reasons stated below, we do not believe that the proposed amended complaint could withstand a motion to dismiss, the motion to amend the complaint and to add Leeds as a party defendant will be denied.

 With respect to that portion of the proposed amended complaint which alleges that plaintiff was deprived of both a property right and a liberty interest, in violation of the Fourteenth Amendment, and his right to free speech, in violation of the First Amendment, it is clear that, for the reasons already discussed, those allegations would have to be dismissed for failure to establish the requisite state action. *fn7" Furthermore, even if we allowed plaintiff to add Leeds as a party defendant, the alleged constitutional violations would still have to be dismissed for lack of state action. Accordingly, the motion to amend the complaint to restate the "property cause of ...


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