United States District Court, M.D. Pennsylvania
June 10, 2005.
AARON L. CHAMBERS, Plaintiff
COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF GENERAL SERVICES, et al., Defendants.
The opinion of the court was delivered by: YVETTE KANE, District Judge
Pending before the Court is Defendants' motion to dismiss
Plaintiff's Second Amended Complaint (Doc. No. 31). For the
reasons that briefly follow, the Motion will be granted in part.
Plaintiff is an African-American employee of the Pennsylvania
Department of General Services. Plaintiff first began working for
the Department in 1985 as a Journeyman's Assistant. In 1988,
Plaintiff was promoted to Refrigeration Mechanic. In 1994 or
1995, Plaintiff was promoted to Refrigeration Plant Supervisor I.
Plaintiff is a union member and has served as a union steward
with Local #2162 as a Refrigeration Mechanic, and with Local
#2245 as a supervisor. On or about September 16, 2002, Plaintiff
was suspended without pay for five days for insubordination,
disrespectful conduct, failing to abide by established operating
procedures, unauthorized absence and neglect of supervisory
responsibilities. These allegations arose out of an incident
during which Plaintiff and a subordinate employee used a state vehicle to pick up food at approximately
6:45 p.m. This vehicle was involved in a traffic accident and
Plaintiff was unable to return to the work site until
approximately 3:00 a.m. In addition to being suspended, Plaintiff
was demoted from Refrigeration Plant Supervisor to Refrigeration
Mechanic as a result of this incident. On November 15, 2002, a
white employee was promoted to Plaintiff's former position of
Refrigeration Plant Supervisor.
Plaintiff commenced this litigation by filing a complaint on
April 2, 2004 in which he asserted a number of civil rights
violations against all Defendants. (Doc. No. 1.) Plaintiff
amended the complaint for the first time on September 10, 2004.
(Doc. No. 11.) Subsequently, in order to address certain
deficiencies in the amended complaint, Plaintiff filed a
second amended complaint on December 13, 2004. (Doc. No. 30.) Defendants
moved to dismiss the second amended complaint on December 27,
II. Standard of Review
A motion to dismiss tests the legal sufficiency of the
complaint. Kost v. Kozakiewicz, 1 F.3d 176, 183 (3d Cir. 1993).
When considering a motion to dismiss, the court accepts as true
all factual allegations contained in the complaint and views them
in the light most favorable to the plaintiff. U.S. Express Lines
Ltd. v. Higgins, 281 F.3d 383, 388 (3d Cir. 2002). The plaintiff
is required to "set forth sufficient information to outline the
elements of his claim or to permit inferences to be drawn that
those elements exist." Kost, 1 F.3d at 183 (citations omitted).
A court should grant a motion to dismiss only if it appears the
plaintiff can prove no set of facts in support of his claim that
would entitle him to relief. Wisniewski v. Johns-Manville
Corp., 759 F.2d 271, 273 (3d Cir. 1985) (citations omitted).
A motion to dismiss under Federal Rule of Civil Procedure
12(b)(6) is properly granted when, taking all factual allegations and inferences as true, the moving
party is entitled to judgment as a matter of law. Markowitz v.
Northeast Land Co., 906 F.2d 100, 103 (3d Cir. 1990). The burden
is on the moving party to show that no claim has been stated.
Johnsrud v. Carter, 620 F.2d 29, 33 (3d Cir. 1980). "A court
may dismiss a complaint only if it is clear that no relief could
be granted under any set of facts that could be proved consistent
with the allegations." Hishon v. King & Spalding, 467 U.S. 69,
73 (1984). However, "a court need not credit a complaint's `bald
assertions' or `legal conclusions' when deciding a motion to
dismiss." Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 906,
908 (3d Cir. 1997). "The issue is not whether a plaintiff will
ultimately prevail but whether the claimant is entitled to offer
evidence to support the claims." Lake v. Arnold, 112 F.3d 682,
688 (3d Cir. 1997) (citing Scheuer v. Rhodes, 416 U.S. 232, 236
(1974), overruled on other grounds by Harlow v. Fitzgerald,
457 U.S. 800 (1982)).
A. Improper Service
Defendants Myers and Phillips contend that Plaintiff's
second amended complaint should be dismissed because "as of the filing
of [the] brief in support of the motion to dismiss," Plaintiff
had not served the summons or any of the complaints filed upon
either Defendant. Therefore, they argue the 120-day period for
service provided by Rule 4(m) of the Federal Rules of Civil
Procedure has expired. (Doc. No. 32, at 6.); Fed.R.Civ.P.
Subsequent to Defendants' filing the pending motion to dismiss,
the Court entered an Order granting Plaintiff an extension of
time to serve Defendants Myers and Phillips, and directed the
Clerk of Court to reissue a summons. (Doc. No. 35.) Subsequently,
both Defendants waived service. (Doc. No. 38.) Therefore, the Court finds that this asserted basis for
dismissing the second amended complaint has been rendered moot.
B. Eleventh Amendment Immunity and Immunity Under the PHRA
Defendants next argue that Plaintiff's claims against the
Department of General Services and all individual Defendants
should be dismissed because the Department of General Services
and all of its employees enjoy immunity under the
Eleventh Amendment to the United States Constitution.
The Eleventh Amendment provides that:
The Judicial Power of the United States shall not be
construed to extend to any suit in law or equity
commenced or prosecuted against one of the
United States by Citizens of another State, or by Citizens
or Subjects of any Foreign State.
U.S. CONST., amend. XI. Accordingly, "[u]nder the
Eleventh Amendment, a plaintiff other than the United States or a state
may not sue a state in federal court without the latter state's
consent unless Congress abrogates the states's immunity pursuant
to a constitutional provision granting Congress that power."
Chittister v. Dept. of Cmty. & Economic Dev., 226 F.3d 223
(3d Cir. 2000). Moreover, although the terms of the Amendment do
not specifically proscribe suits against a state by its own
citizens, the Supreme Court has held that states are immune from
such suits brought in federal court. Atascadero State Hosp. v.
Scanlon, 473 U.S. 234
, 236 (1985); Hans v. Louisiana,
134 U.S. 1
, 10 (1890). This grant of immunity extends to suits brought
against agencies or departments of a state, as well as suits
against the state itself. Mt. Healthy City Bd. of Educ. v.
Doyle, 429 U.S. 274
, 280 (1977); see also Ford Motor Co. v.
Dept. of Treasury, 323 U.S. 459
, 464 (1945) ("When an action is
in essence one for the recovery of money from the state, the
state is the real, substantial party in interest and is entitled to invoke its sovereign immunity even though
individual officials are nominal defendants").
It is undisputed that the Pennsylvania Department of General
Services is an administrative agency of the Commonwealth.
71 P.S. § 631 (2004). Accordingly, Plaintiff's claims against the
Department of General Services are barred pursuant to the
Eleventh Amendment. Doyle, 429 U.S. at 280.
Defendants also argue that the Commonwealth's immunity under
both the Eleventh Amendment and the Pennsylvania Human Relations
Act, 43 Pa. C.S.A. § 951 et seq. ("PHRA"), should extend
also to "any of the individual Defendants." (Doc. No. 32, at 7.)
Defendants offer no legal support for this argument. Plaintiff
has sued the individual defendants in both their official and
individual capacities. (Doc. No. 30, Second Amended Complaint.)
It is well-settled that official capacity suits are nothing more
than suits against an official's employing agency. Kentucky v.
Graham, 473 U.S. 159, 165 (1985). Accordingly, the Court agrees
that the individual Defendants are immune from suit in their
official capacities pursuant to the Eleventh Amendment. However,
this grant of immunity does not extend to suits against the
individual Defendants in their individual capacities, and
Defendants offer no other argument to support their contention
that the individual Defendants enjoy immunity from this
litigation. Accordingly, the Court will grant Defendants' motion
to dismiss the Department of General Services and all official
capacity claims against the individually-named Defendants
pursuant to the Eleventh Amendment and Kentucky v. Graham, but
will not dismiss Plaintiff's individual capacity claims brought
against the individual Defendants.
C. Statute of Limitations Although Congress did not provide a specific federal statute of
limitations for claims brought under 42 U.S.C. §§ 1981, 1983, and
1985, the Supreme Court has held that 42 U.S.C. § 1988 directs
federal courts to borrow the state statute of limitations for the
most analogous cause of action. Wilson v. Garcia, 471 U.S. 261,
266-67 (1985). Subsequently, it has become well-settled in this
circuit that claims brought under brought under
42 U.S.C. §§ 1981, 1983, and 1985 based on torts alleged to have occurred in
Pennsylvania are subject to a two-year statute of limitations.
See Goodman v. Lukens Steel Co., 482 U.S. 656, 660-62 (1987)
(section 1981); Lake v. Arnold, 232 F.3d 360, 36 (3d Cir. 2000)
(sections 1983, 1985); Bougher v. University of Pittsburgh,
882 F.2d 74, 78 (3d Cir. 1989); Rose v. Bartle, 871 F.2d 331, 348
and n. 13 (3d Cir. 1989). In contrast, it is statutorily provided
that claims brought under 42 U.S.C. § 1986 are subject to a
one-year statute of limitations. See 42 U.S.C. § 1986 ("no
action under the provisions of this section shall be sustained
which is not commenced within one year after the cause of action
Defendants argue that Plaintiff's claims brought under sections
1981, 1983, and 1985 must be dismissed because "many of the
alleged events" set forth in the second amended complaint are
alleged to have occurred more than two years before the original
complaint was filed on April 2, 2004. (Doc. No. 32, at 9.)
Defendants note that only two of the allegations set forth in the
second amended complaint are alleged to have occurred after April
2, 2002, and that Plaintiff failed to specifically set forth when
certain other alleged events took place. Additionally,
Defendant's argue that Plaintiff's claims brought under
42 U.S.C. § 1986 are subject to a one-year statute of limitations, and that
none of the allegations contained in the second amended complaint
are claimed to have occurred over one year before this litigation
commenced. Plaintiff responds that he has alleged discrete employment
actions that he claims occurred within the relevant limitations
period, as well has other allegedly "adverse employment actions"
that occurred more than two years before the original complaint
was filed in order to provide "relevant background and history"
to the claims upon which he seeks relief. (Doc. No. 34, at 3.)
Additionally, Plaintiff argues that none of the claims should be
deemed time-barred under the continuing violations exception.
The continuing violations exception is "an equitable exception
to the timely filing requirement." Cowell v. Palmer Township,
263 F.3d 286, 292 (3d Cir. 2001) (quoting West v. Philadelphia
Elec. Co., 45 F.3d 744, 754 (3d Cir. 1985)). The Third Circuit
has explained the exception as follows:
when a defendant's conduct is part of a continuing
practice, an action is timely so long as the last act
evidencing the continuing practice falls within the
limitations period; in such an instance, the court
will grant relief for the earlier related acts that
would otherwise be time barred.
Id. (quoting Brenner v. Local 514, United Bhd. of Carpenters &
Joiners of Am., 927 F.2d 1283
, 1295 (3d Cir. 1991)). Although
not so limited, the continuing violations doctrine has been most
frequently applied in the context of employment discrimination
claims. Id. (citations omitted). In order to invoke the
doctrine, a plaintiff must establish that a defendant's conduct
is "more than the occurrence of isolated or sporadic acts." Id.
(quoting West, 45, F.3d at 755). The Third Circuit has directed
district courts to consider at least three factors: (1) subject
matter (i.e., whether the violations constitute the same type of
discrimination); (2) frequency (i.e., whether the acts are
recurring or are rather isolated incidents); and (3) degree of
permanence (i.e., whether the act had a degree of permanence such
that the plaintiff's awareness should be triggered and a duty to
assert his/her rights and whether the consequences of the act
would continue even in the absence of a continuing intent to
discriminate). Id. (citations omitted). The consideration of the "degree of
permanence" is the most important of the three factors. Id.
Although he raises the continuous violations exception,
Plaintiff also tacitly acknowledges that the exception is
irrelevant to his claims. Plaintiff has conceded that he cannot
maintain any separate damage claims for adverse employment
actions that may have occurred before April 2002, because such
claims would be time-barred. (Doc. No. 34, at 3-4) ("Plaintiff
agrees that any separate damages claims for adverse employment
actions occurring before April, 2002 would be barred under
42 U.S.C. §§ 1981, 1983, 1985, and 1986"). Moreover, Plaintiff has
provided very little argument as to why the continuing violations
exception applies to this case, and Defendants have not offered
any response to Plaintiff's assertion of the exception.
Accordingly, the Court does not find that it is relevant or
necessary at this time to determine whether the continuing
violations exception applies to the facts of this case. Plaintiff
has pleaded at least one adverse employment decision within the
two-year limitations period, and acknowledges that he may not
maintain separate damage claims for actions occurring before
April 2002. Accordingly, the Court will not dismiss Plaintiff's
claims under 42 U.S.C. §§ 1981, 1983, and 1985. However, the
Court finds that Plaintiff's claims under 42 U.S.C. § 1986 must
be dismissed because Plaintiff has not alleged any facts or
events that occurred within one year of the date this litigation
commenced. Accordingly, any claims under section 1986 are now
time-barred and will be dismissed.
D. Failure to State a Claim
Finally, Defendants assert that Plaintiff has failed to
sufficiently plead personal involvement by any of the individual
Defendants and, accordingly, Defendants contend that Plaintiff's
claims under sections 1981 and 1983, as well as the First and
Fourteenth Amendments, must be dismissed. Defendants aver that "[c]ertainly
each and every individual Defendant did not play a part in each
and every alleged event in the Second Amended Complaint." (Doc.
No. 32, at 11.) Plaintiff responds by reciting the familiar rule
governing notice pleading and the standards for evaluating
motions to dismiss.
The Court agrees with Defendants that the Second Amended
Complaint lacks detail, and in many instances is vague. Indeed,
it appears the only specificity Plaintiff offers regarding his
allegations against the individual Defendants is contained in
paragraph 37 of the second amended complaint:
Individual Defendants Spoljaric, Klinger, Myers,
Zirrili and Sedesse are supervisory personnel in
Plaintiff's department. Hodge, Green, Phillips, and
Watson serve employee relations functions. Upon
information and belief, the individual Defendants
were actually involved in the violations of the
rights at issue in Plaintiff's Complaint and/or knew
of and/or acquiesced in those violations and/or
conspired between and among themselves to effect the
(Second Amended Complaint, ¶ 37.) Notwithstanding the generality
of the allegations, the Court does not conclude that the civil
rights claims must be dismissed at this time for failure to state
a claim. A defendant in a civil rights action must have personal
involvement in the alleged wrongs[.]" Rode v. Dellarciprete,
845 F.2d 1195
, 1207 (3d Cir. 1988). Such personal involvement can
be shown through "allegations of personal direction or of actual
knowledge and acquiescence." Id. It is true that allegations of
participation or actual knowledge and acquiescence must be made
with appropriate particularity. Id. Although the second amended
complaint provides very little in the way of particularity about
the actions of individual Defendants, it does provide details
regarding the alleged wrongful employment actions and
specifically alleges that the individual Defendants all had
actual knowledge of and/or acquiesced in the alleged civil rights violations.
Therefore, notwithstanding the generality of the allegations, the
individual Defendants have been placed on notice of the basis of
Plaintiff's claims and the nature of the allegations against
which they must defend. Accordingly, the Court will not dismiss
the second amended complaint for failure to state a claim. IV. Order
And now, this 10th day of June 2005, for the reasons stated
in the within memorandum, IT IS HEREBY ORDERED THAT Defendants'
Motion to Dismiss Plaintiff's second amended complaint (Doc. No.
31) is GRANTED in part and DENIED in part as follows:
1. All claims against the Pennsylvania Department of
General Services and all official capacity claims
against the individual Defendants are DISMISSED
because such claims are barred by the
Eleventh Amendment and/or the Pennsylvania Human Relations
2. Plaintiff's claims brought under 42 U.S.C. § 1986
are DISMISSED as time-barred.
3. In all other respects, the Motion to Dismiss is