under the clearly established law, whether a reasonable public official could have believed that his conduct was lawful. See e.g., Sherwood v. Mulvihill, 113 F.3d 396, 399 (3d Cir. 1997); Grant v. City of Pittsburgh, 98 F.3d 116, 121-22 (3d Cir. 1996).
31. Recently, in Anderson v. Davila, 37 V.I. 496, 125 F.3d 148 (3d Cir. 1997), the Third Circuit stated as follows:
Under Mt. Healthy City School Dist. Bd. of Educ.
v. Doyle, 429 U.S. 274, 50 L. Ed. 2d 471, 97 S. Ct. 568 (1977) and its progeny, an otherwise legitimate and constitutional government act can become unconstitutional when an individual demonstrates that it was undertaken in retaliation for his exercise of First Amendment speech. This doctrine demonstrates that, at least where the First Amendment is concerned, the motives of government officials are indeed relevant, if not dispositive, when an individual's exercise of speech preceded government action affecting that individual.
Anderson, 125 F.3d at 161. See also Crawford-El v. Britton, 320 U.S. App. D.C. 150, 93 F.3d 813, 817 (D.C. Cir. 1996), cert. granted, 138 L. Ed. 2d 210, 117 S. Ct. 2451 (1997) ("This circuit and others have understood Harlow [v. Fitzgerald, 457 U.S. 800, 73 L. Ed. 2d 396, 102 S. Ct. 2727 (1982)] to allow inquiry into subjective motivation where an otherwise constitutional act becomes unconstitutional only when performed with some sort of forbidden motive. . .") (citing cases).
32. Because Judge Avellino has alleged that the actions of the defendants were undertaken in retaliation for his exercise of First Amendment speech putting at issue the motive of the decision maker, the Court cannot conclude that this case should be dismissed under the qualified immunity doctrine at this stage of the proceedings.
Failure to State a Claim
33. Fourth, and finally, the defendants seek dismissal of the amended complaint under Rule 12(b)(6) of the Federal Rules of Civil Procedure for failure to state a cause of action. The purpose of a Rule 12(b)(6) motion is to test the legal sufficiency of a complaint. See Sturm v. Clark, 835 F.2d 1009, 1011 (3d Cir. 1987). In deciding a motion to dismiss for failure to state a claim, the Court must "consider only those facts alleged in the complaint and accept all of the allegations as true," ALA, Inc. v. CCAIR, Inc., 29 F.3d 855, 859 (3d Cir. 1994), and must view the allegations in the amended complaint in the light most favorable to the non-moving party. See Rocks v. City of Philadelphia, 868 F.2d 644, 645 (3d Cir. 1989). Dismissal is not appropriate unless it clearly appears that plaintiff can prove no set of facts in support of his claim which would entitle him to relief. See Conley v. Gibson, 355 U.S. 41, 45-46, 2 L. Ed. 2d 80, 78 S. Ct. 99 (1957); See also CCAIR, 29 F.3d at 859 (citing D.P Enterprises, Inc. v. Bucks County Community College, 725 F.2d 943, 944 (3d Cir. 1984)). A complaint may be dismissed when the facts plead and the reasonable inferences drawn therefrom are legally insufficient to support the relief sought. See Com. of Pa. ex rel. Zimmerman v. PepsiCo. Inc., 836 F.2d 173, 179 (3d Cir. 1988). Moreover, in deciding a motion to dismiss under Rule 12(b)(6), the district court "is not required to accept legal conclusions either alleged or inferred from the pleaded facts." Kost v. Kozakiewicz, 1 F.3d 176, 183 (3d Cir. 1993).
34. To prevail on his retaliation claims under § 1983 in Counts 1 & 2, Judge Avellino is required to prove three things: (1) first, that he was engaged in protected activity; (2) second, that the defendants responded with retaliation; and (3) third, that his protected activity was a substantial cause or motivating factor for the alleged retaliatory action. See e.g., Anderson v. Davila, 37 V.I. 496, 125 F.3d 148, 161; Feldman v. Philadelphia Housing Authority, 43 F.3d 823, 829 (3d Cir. 1994) (citing Mt. Healthy, 429 U.S. 274, 50 L. Ed. 2d 471, 97 S. Ct. 568).
35. As to Judge Herron, the Court cannot conclude that under no set of facts is Judge Avellino able to establish the First Amendment retaliation claims asserted in Counts 1 & 2 of the amended complaint. Accordingly, the Court will deny the motion to dismiss Counts 1 & 2 as to Judge Herron.
36. As to Judge Bonavitacola, the Court will grant the motion to dismiss Counts 1 & 2. To hold Judge Bonavitacola liable under § 1983 for the alleged violations, Judge Avellino must show that Judge Bonavitacola "'participated in violating [his] rights, . . . or that [he] directed others to violate them, or that [he] had knowledge of and acquiesced in [his] subordinates' violations.'" Robinson v. City of Pittsburgh, 120 F.3d 1286, 1293 (3d Cir. 1997) (quoting Baker v. Monroe Twp., 50 F.3d 1186, 1190-91 (3d Cir. 1995).
37. Judge Avellino nowhere alleges that Judge Bonavitacola had any authority to order his reassignment or that of his tipstaff. In fact, under the 1986 Directive, which the defendants attached in part to their motion, and under the Supreme Court of Pennsylvania's pronouncements in Blake, it is clear that the Supreme Court of Pennsylvania has vested the authority to make judicial assignments in the First Judicial District on the administrative judge, and that of assignment of personal staff on the individual judge, and not on the president judge. See Directive, 509 Pa. at XLI-XLII, para. 3(a) & (b). Nor is Judge Bonavitacola's participation along with Judge Herron in the filing of the show cause petition in the Supreme Court of Pennsylvania actionable under § 1983. Merely alleging that Judge Bonavitacola brought Judge Avellino's failure to report to his assignment of presiding over felony waiver proceedings to the attention of the Supreme Court of Pennsylvania does not state a claim under § 1983. Therefore, the Court concludes that under no set of facts can Judge Avellino establish his First Amendment retaliation claims under Counts 1 & 2 against Judge Bonavitacola. Accordingly, the Court will grant the motion to dismiss Counts 1 & 2 as to Judge Bonavitacola.
38. Count 3 of the amended complaint seeks attorney's fees. A claim for attorney's fees does not state a cause of action. The Court will dismiss the Count since it should be part of the prayer for relief, not pleaded as a separate count.
AND IT IS SO ORDERED.
EDUARDO C. ROBRENO, J.