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ROGERS v. MOUNT UNION BOROUGH

March 3, 1993

JOSEPH D. ROGERS, Plaintiff
v.
MOUNT UNION BOROUGH by: ROBERT W. ZOOK, Mayor, DANIEL WHITSEL, Mayor, JOSEPH D'ANGELO, Council Member, NORMAN SIMPSON, Council Member, MEDIO ALESI, Council Member, GUY CROYLE, Council Member, BOY GILL, Council Member, BETTY FLEMMING, Council Member, JOHN COPENHAVER, Council Member, ALLEN WELCH, Council Member, DAVID HARKER, Patrolman, and Assistant Chief, Individually and in their official capacity, Defendants



The opinion of the court was delivered by: WILLIAM W. CALDWELL

 We are considering defendants' motion to dismiss portions of the complaint under Fed. R. Civ. P. 12(b)(6) and to strike certain portions of the complaint under Fed. R. Civ. P. 12(f). This case involves allegations of racial discrimination and the complaint asserts claims based on 42 U.S.C. § 1981, U.S.C. § 1983, 42 U.S.C. §§ 1985 and 1986, conspiracy to deprive plaintiff of his rights under the federal thirteenth and fourteenth amendments, state and federal employment discrimination statutes, and state-law wrongful discharge. We exercise jurisdiction according to 28 U.S.C. §§ 1331 and 1343.

 I

 Plaintiff, a black man, is the former police chief of Mount Union Borough, Pennsylvania, having been hired in February, 1987. Plaintiff alleges that several members of the borough council argued against his selection because of his race. He asserts that he suffered racially discriminatory treatment throughout his tenure with the borough. The complaint includes a number of specific allegations, including denial of a pay raise, obstruction of plaintiff's attempts to properly perform his duties, improper suspensions, and removal of rank. Plaintiff's employment was terminated in January, 1991, and he filed the current lawsuit on September 30, 1992. On October 21, 1992, defendants filed the pending motion. *fn1"

 II

 As a threshold matter, plaintiff has not indicated precisely which of defendants' alleged actions amount to actionable discrimination. *fn2" Upon reviewing the complaint, we believe our examination should focus on plaintiff's termination. Plaintiff bolsters this conclusion in his brief opposing the current motion when he indicates that:

 
These allegations set forth the defendants' racial discriminatory intent to harass and terminate the plaintiff. Since plaintiff's suit was brought within two years of the date upon which his employment ceased, all allegations concerning plaintiff's dismissal are appropriate before the Court.

 Pl. Brief at 17. As plaintiff indicates, the cause of action arises from his discharge; the recitation of facts is offered as background and context.

 III

 In considering a motion under Rule 12(b)(6), we must accept as true all the well-pleaded allegations of the complaint and construe them favorably to the plaintiff. We cannot grant the motion unless the plaintiff can prove no set of facts in support of his claim which would entitle him to relief. Labov v. Lalley, 809 F.2d 220 (3d Cir. 1987). A plaintiff bringing a cause of action under 42 U.S.C. § 1983 is held to a higher standard: he must allege with specificity the facts giving rise to his complaint. McCardle v. Tronetti, 961 F.2d 1083, 1088 (3d Cir. 1992). There are principally two reasons underlying this requirement: (1) to protect state (or local) officials from a deluge of frivolous claims and (2) to allow state (or local) officials sufficient notice of the nature of the claims against them to enable them to respond. Colburn v. Upper Darby Township, 838 F.2d 663, 665 (3d Cir. 1988).

 Defendants contend that plaintiff's § 1983 claim lacks the specificity required by Third Circuit precedent because it does not describe particular facts and connect them with particular federal rights alleged to have been deprived. Plaintiff counters that the complaint specifically alleges facts that describe a violation of plaintiff's fourteenth amendment rights under color of state law. He offers Sample v. Diecks, 885 F.2d 1099 (3d Cir. 1989), to support his argument.

 
A plaintiff . . . who brings a § 1983 suit based on a violation of the due process clause must allege and prove five things: (1) that he was deprived of a protected liberty or property interest; (2) that this deprivation was without due process; (3) that the defendant subjected the plaintiff, or caused the plaintiff to be subjected, to this deprivation without due process; (4) that the defendant was acting under color of state law; and (5) that the plaintiff suffered injury as a result . . .

 Id. at 1113. We do not read plaintiff's complaint to allege that he had either a protected liberty or property interest in his position with the borough. Not all employment involves a property or liberty right protected by the fourteenth amendment. Board of Regents v. Roth, 408 U.S. 564, 578; 92 S. Ct. 2701; 33 L. Ed. 2d 548 (1972). Without such an interest, no process is due. Id. The fourteenth amendment also insures equal protection. Adickes v. SH Kress & Co., 398 U.S. 144, 90 S. Ct. 1598, 26 L. Ed. 2d 142 (1970). Again, plaintiff has not plead such a claim with the specificity required under 42 U.S.C. § 1983. We will, then, dismiss Count II of the complaint without prejudice to plaintiff's right to file an amended complaint.

 IV

 Count I of the complaint alleges a violation of 42 U.S.C. § 1981. Defendants have moved for its dismissal, arguing that § 1981 can not support a claim for racially motivated discharge.

 Section 1981 forbids discrimination in the making and enforcement of contracts. In 1989, the United States Supreme Court held that claims of racially motivated discharge were not actionable under § 1981. Patterson v. McLean Credit Union, 491 U.S. 164, 109 S. Ct. 2363, 105 L. Ed. 2d 132 (1989); see also, Hayes v. Community General Osteopathic Hosp., 940 F.2d 54, 56 (3d Cir. 1991). Plaintiff does not dispute the effect of Patterson, but argues that the Civil Rights Act of 1991, Public L. No. 102-166, § 101, 105 Stat. 1071 (1991), amends § 1981 and reverses Patterson. The amendment reads as follows:

 
(b) For purposes of this section, the term "make and enforce contracts" includes the making, performance, modification, and termination of contracts . . .

 V

 Defendants ask that we dismiss the action against all the individuals named as defendants, because they are sued in their official capacities and the claims against them merge with the claims against the Borough.

 To buttress this argument, defendants offer Brandon v. Holt, 469 U.S. 464, 105 S. Ct. 873, 83 L. Ed. 2d 878 (1985), and Gregory v. Chehi, 843 F.2d 111 (3d Cir. 1988). Both cases support the proposition that a suit against individual defendants in their official capacities might well merge with the suit against the municipal entity. 843 F.2d 119 at 119-20 . Plaintiff has offered no argument on this issue. However, our review of Gregory leads us to conclude that defendants' reliance is misplaced. Plaintiff has expressly sued the named individuals in both their official and individual capacities. To the extent that the individuals are sued in their individual capacities, no merger can occur. We must, therefore, deny defendants' request.

 VI

 Defendants have moved for dismissal of Count VI, based on title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq., for failure to state a claim. Fed. R. Civ. P. 12(b)(6). Essentially, defendants argue that the complaint fails to make out a prima facie case for discriminatory discharge. See Dupont v. Stroheim and Romann, Inc., slip op. no. 86 Civ. 198 (S.D.N.Y. November 20, 1986).

 Absent direct proof of purposeful discrimination, a title VII plaintiff must establish an appropriate inference of discriminatory intent though the framework established in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973), and its progeny. The test must be varied to consider different employment situations and different alleged acts of discrimination. The Third Circuit has suggested that a plaintiff alleging discriminatory discharge must prove (1) he is a member of a protected class, (2) he was qualified for the position from which he was discharged, and (3) others not in the protected class were treated ...


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