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November 22, 2005.

LINDA BONNEY, et al., Defendants.

The opinion of the court was delivered by: SYLVIA RAMBO, Senior District Judge


Before the Court is Plaintiff's Motion for Leave to File an Amended Complaint. (Doc. 25-1). The parties have briefed the issues, and the matter is ripe for disposition. For the reasons stated below, the court will grant the motion in part and deny it in part.

I. Background

  Plaintiff Charles Dyche filed a Complaint on August 18, 2005. (Doc. 1-1.) Plaintiff's Complaint asserted that Defendant Linda Bonney, an employee of the Pennsylvania State Police ("PSP"), in concert with two John Doe Defendants, participated in a violation of Plaintiff's rights under the First, Fourth, and Fourteenth Amendments. (Compl. ¶ 1.) Plaintiff contended that while he was applying for a trooper position with the PSP, Defendants conducted an unwarranted polygraph examination that resulted in Plaintiff admitting to a sexual tryst with a minor that occurred 12 years before. (Id. ¶¶ 12-15.) Plaintiff asserted that this information was used to remove him from the PSP Academy, where Plaintiff was training to be a trooper. (Id. ¶ 23.) Plaintiff argued that because Defendants knew of the sexual tryst, yet still admitted Plaintiff to the Academy, their subsequent removal of Plaintiff from the Academy without a hearing was done in violation of his rights of privacy and due process. (Id. ¶¶ 16, 20-21, 23.) Plaintiff's Complaint survived a motion to dismiss. (See Doc. 13.)

  After conducting discovery, Plaintiff filed for leave to amend his Complaint on July 11, 2005, asserting that he obtained new information through the discovery process. (Doc. 25-1.)

  II. Applicable Legal Standards

  A. Motion to Amend

  Once a responsive pleading has been served, "a party may amend the party's pleading only by leave of court or by written consent of the adverse party; and leave shall be freely given when justice so requires." Fed.R.Civ.P. 15(a). Whether to grant or deny the motion is within the court's discretion. Foman v. Davis, 371 U.S. 182 (1962). A court may deny a motion for leave to amend if "(1) the moving party has demonstrated undue delay, bad faith, or dilatory motives; (2) the amendment would be futile; or (3) the amendment would prejudice the other party." Fraser v. Nationwide Mut. Ins. Co., 352 F.3d 107, 116 (3d Cir. 2003). Mere delay will not warrant the denial of a motion for leave to amend "absent a concomitant showing of undue prejudice or bad faith." Zygmuntowicz v. Hospitality Invs., Inc., 151 F.R.D. 53, 55 (E.D. Pa. 1993). "Amendment of the complaint is futile if the amendment would not cure the deficiency in the original complaint or if the amended complaint cannot withstand a motion to dismiss." Massarsky v. General Motors Corp., 706 F.2d 111, 125 (3d Cir. 1983). B. Motion to Dismiss

  In deciding a motion to dismiss pursuant to Federal Rule 12(b)(6), the court is required to accept as true all of the factual allegations in the complaint and all reasonable inferences that can be drawn from the face of the complaint. Worldcom, Inc. v. Graphnet, Inc., 343 F.3d 651, 653 (3d Cir. 2003). "The complaint will be deemed to have alleged sufficient facts if it adequately put[s] the defendant[s] on notice of the essential elements of the plaintiff's cause of action." Nami v. Fauver, 82 F.3d 63, 65 (3d Cir. 1996). The court will not dismiss a complaint for failure to state a claim "unless it appears beyond a doubt that the plaintiff can prove no set of facts in support of his claim that would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46 (1957); Port Auth. of New York & New Jersey v. Arcadian Corp., 189 F.3d 305, 311 (3d Cir. 1999).

  "To decide a motion to dismiss, courts generally consider only the allegations contained in the complaint, exhibits attached to the complaint and matters of public record." Pension Benefit Guar. Corp. v. White Consol. Indus., 998 F.2d 1192, 1196 (3d Cir. 1993) (citations omitted). Additionally, the court may consider "undisputedly authentic document[s] that a defendant attaches as an exhibit to a motion to dismiss if the plaintiff's claims are based on the [attached] document[s]." Id. Moreover, "documents whose contents are alleged in the complaint and whose authenticity no party questions, but which are not physically attached to the pleading may be considered." Pryor v. Nat'l Collegiate Athletic Ass'n, 288 F.3d 548, 560 (3d Cir. 2002). However, the court may not rely on other parts of the record in making its decision. Jordan v. Fox, Rothschild, O'Brien & Frankel, 20 F.3d 1250, 1261 (3d Cir. 1994). Finally, in the Third Circuit, a court must grant leave to amend before dismissing a complaint that is merely deficient. See, e.g., Weston v. Pennsylvania, 251 F.3d 420, 428 (3d Cir. 2001); Shane v. Fauver, 213 F.3d 113, 116-17 (3d Cir. 2000). "Dismissal without leave to amend is justified only on the grounds of bad faith, undue delay, prejudice, or futility." Alston v. Parker, 336 F.3d 229, 236 (3d Cir. 2004).

  III. Discussion

  Plaintiff proposes four additions to his Complaint.*fn1 First, Plaintiff asserts breach of contract claims against all Defendants. Second, Plaintiff adds the PSP as a defendant. Third, Plaintiff adds Barbara Christie, counsel to the PSP, as a defendant. Fourth, Plaintiff adds Jeffrey Miller, Commissioner of the PSP, as a defendant. The court will discuss each of the proposed amendments in turn.

  A. Breach of Contract Claims

  In Plaintiff's proposed Amended Complaint, Plaintiff seeks to assert breach of contract claims against the PSP and all individual defendants. Plaintiff contends that because Plaintiff was admitted to the Academy even though Defendants knew of Plaintiff's prior sexual encounter with the minor, Defendants breached their contract with Plaintiff when they removed him from the Academy weeks later. No employment contract existed between the PSP and Plaintiff. Plaintiff was a probationary employee, and as such was not covered by the PSP Member Collective Bargaining Agreement.*fn2 The probationary nature of Plaintiff's position negates the expectation Plaintiff might have had in continued employment. See Blanding v. Pennsylvania State Police, 12 F.3d 1303, 1307 (3d Cir. 1993). Additionally, absent a showing that state law has created a legitimate expectation of continued employment, a public employee is presumed to be an at-will employee. Id.; Cooley v. Pennsylvania Housing Finance Agency, 830 F.2d 469, 471 (3d ...

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