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PALACE v. DEAVER

December 3, 1993

THELMA L. PALACE
v.
ROBERT DEAVER and ROBERT SMYTHE



The opinion of the court was delivered by: BY THE COURT; J. CURTIS JOYNER

 JOYNER, J.

 This civil rights case has been brought before the court by motion of the Defendants, Robert Deaver and Robert Smythe to dismiss the plaintiff's amended complaint with prejudice pursuant to Fed.R.Civ.P. 12(b)(6) for failure to state a cause of action under the Civil Rights Act, 42 U.S.C. §§ 1983, 1985(3) and 1986. For the reasons delineated in the paragraphs which follow, the motion is granted in part and denied in part.

 I. HISTORY OF THE CASE

 According to the allegations set forth in the plaintiff's amended complaint, she was elected to the position of Tax Collector for the Borough of Darby, Pennsylvania in November, 1987 and subsequently re-elected to a four-year term in November, 1989. At all relevant times, the defendants, Robert Deaver and Robert Smythe held the positions of Darby Borough Council President and Darby Borough Police Chief, respectively. The complaint further avers that, beginning in January, 1992 and continuing through October, 1992, defendant Deaver, "in his position and capacity as President of Darby Borough Council," repeatedly engaged in a series of sexually discriminatory actions against Ms. Palace consisting primarily of sexually explicit and "vulgar comments," driving past her home "in an attempt to observe and spy upon her" and, on one occasion, "grabbing her, pulling her next to him and forcibly kissing her." Although plaintiff reported these incidents to Police Chief Smythe, he purportedly only laughed, told her that Deaver was "horny" and suggested that she be "nice" to him or Deaver would "bury" her.

 Thereafter, plaintiff contends, Smythe and Deaver instituted a campaign designed to malign and disparage her with the result that in May, 1992 she was admitted to the hospital with chest pains. Ms. Palace subsequently resigned her position as tax collector in September, 1992 giving as the reason therefor the hostile work environment which the defendants had created for her. She commenced the instant lawsuit on July 16, 1993 seeking compensatory and punitive damages for the deprivation of her civil, constitutional and statutory rights pursuant to 42 U.S.C. Sections 1983, 1985(3) and 1986 and for assault and battery.

 II. DISCUSSION

 By way of their pending motion to dismiss, the defendants submit that the plaintiff has failed to plead a cause of action against them under any of the above-referenced sections and that, as a consequence, this action should be dismissed in its entirety with prejudice. We cannot agree.

 A. Legal Principles Applicable to Rule 12(b)(6) Motions

 The law is well-settled that in ruling upon motions to dismiss for failure to state a claim upon which relief may be granted, the district courts must primarily consider the allegations in the complaint, although matters of public record, orders, items appearing in the record of the case and exhibits attached to the complaint may also be taken into account. Chester County Intermediate Unit v. Pennsylvania Blue Shield, 896 F.2d 808, 812 (3rd Cir. 1990). On a motion to dismiss for failure to state a claim, all allegations in the pleadings must be accepted as true and the plaintiff must be given the benefit of every favorable inference that can be drawn from those allegations. Schrob v. Catterson, 948 F.2d 1402, 1405 (3rd Cir. 1991); Markowitz v. Northeast Land Co., 906 F.2d 100, 103 (3rd Cir. 1990). A complaint is properly dismissed only if it appears certain that the plaintiff cannot prove any set of facts in support of his claim which would entitle him to relief. Conley v. Gibson, 355 U.S. 41, 78 S. Ct. 99, 2 L. Ed. 2d 80 (1957); Ransom v. Marrazzo, 848 F.2d 398, 401 (3rd Cir. 1988).

 Nevertheless, the Third Circuit has required complaints arising under federal civil rights statutes to be stated with greater particularity than is generally required under the liberal federal pleading rules in order to prevent frivolous civil rights suits. Frazier v. Southeastern Pennsylvania Transportation Authority, 785 F.2d 65, 67 (3rd Cir. 1986); Humphrey v. Court of Common Pleas of York County, 640 F. Supp. 1239, 1243-1244 (M.D.Pa. 1986). In this Circuit, a plaintiff pursuing a cause of action under Title 42 U.S.C. §§ 1983 and/or 1985 must plead the facts giving rise to the claimed deprivation of civil liberties as well as the conduct of defendants alleged to have harmed the plaintiff with specificity and avoid vague and conclusory allegations in the complaint. Darr v. Wolfe, 767 F.2d 79, 80 (3rd Cir. 1985); Dudosh v. City of Allentown, 629 F. Supp. 849, 851 (E.D.Pa. 1985); Iseley v. Bucks County, 549 F. Supp. 160, 168 (E.D.Pa. 1982).

 B. Plaintiff's Claims under 42 U.S.C. § 1983

 Under Section 1983 of the Civil Rights Act,

 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 ...


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