The opinion of the court was delivered by: YVETTE KANE, District Judge
Before the Court is Defendants' Partial Motion to Dismiss the
Amended Complaint. (Doc. No. 24.) The motion has been fully
briefed and is ripe for disposition. For the reasons discussed
below, the motion will be granted.
Plaintiffs collectively initiated this civil action by a
complaint pursuant to 42 U.S.C. § 1983 on February 1, 2005,
claiming that employees of the Pennsylvania State Police violated
their civil rights. On April 5, 2005, Defendants filed a partial
motion to dismiss. (Doc. No. 6.) By Order dated August 4, 2005,
this Court, inter alia, dismissed Plaintiff James Murphy's
selective prosecution claim, but granted Plaintiff Murphy leave
to amend the complaint within twenty days. (Doc. No. 18.)
Plaintiffs filed an Amended Complaint on August 26, 2005. (Doc. No. 31.) In that Amended Complaint, Plaintiff Murphy alleges that
his property was taken and converted by Defendant Bock and other
Pennsylvania State Police officials, and that Defendant Miller
ordered that the property not be returned. (Id. at ¶ 20.)
Murphy also alleges that Defendant Miller and others selectively
and vindictively prosecuted him because he possessed a collection
of Pennsylvania State Police memorabilia. (Id. at ¶ 23-25.) On
September 7, 2005, Defendants filed a partial motion to dismiss
the Amended Complaint, seeking dismissal of Plaintiff Murphy's
selective prosecution claim. (Doc. No. 24.)
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 (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)).
Defendants alleges that Plaintiff Murphy again fails to state a
claim for selective prosecution. (Doc. No. 25.) A selective
prosecution claim is an "independent assertion that the
prosecutor has brought the charge for reasons forbidden by the
Constitution." United States v. Armstrong, 517 U.S. 456, 463
(1996). To state a claim for selective prosecution, there must be
"evidence that persons similarly situated have not been
prosecuted and that the decision to prosecute was made on the
basis of an unjustifiable standard, such as race, religion, or
some other arbitrary factor, or that the prosecution was intended
to prevent his exercise of a fundamental right." United States
v. Schoolcraft, 879 F.2d 64, 68 (3d Cir. 1989).
In the Amended Complaint, Plaintiff Murphy alleges that "he was
vindictively and selectively victimized by [the Pennsylvania
State Police's] internal and criminal investigative processes"
and that he was "treated differently than other Pennsylvania
State Police Officers similarly situated who do not have
interests in, or maintain memorabilia collections. . . ." (Doc.
No. 31 ¶¶ 25-26.) Defendants argue that Plaintiffs' amended
complaint once again fails to allege that similarly situated
officers were treated more leniently, and fails to identify the
crime for which Plaintiff Murphy claims selective prosecution. (Doc. No. 25
at 4.) Plaintiff Murphy responds that he was singled out because
of his status as a collector of State Police memorabilia and
cites one other individual, a Captain Darrell Ober, who was
similarly "vindictively and selectively investigated at least."
(Doc. No. 26.) Plaintiff argues further "if government officials
under badge of authority could use their authority to persecute
and intimidate those who are acting in competition with a pet
secular [sic] pursuit then government officials could gather and
keep property and convert it to their own use with impunity."
(Doc. 26 at 3.)
Even assuming that being a collector of Pennsylvania State
Police memorabilia constitutes an "arbitrary factor" upon which a
decision to prosecute cannot be made, it is axiomatic that to
state a claim for selective prosecution one must in fact be
prosecuted for an offense. Schoolcraft, 879 F.2d at 68.
Plaintiff Murphy alleges that "the internal investigative and
criminal investigative power of the Pennsylvania State Police
were used to selectively and vindictively prosecute him" but
fails to allege the crime for which he was prosecuted or even
when this asserted selective prosecution took place. (Doc. No. 31
at ¶ 23.) Moreover, Plaintiff Murphy fails to allege that
similarly situated individuals had committed the same offense,
whatever that offense may be, but were not similarly prosecuted.
Rather, Plaintiff Murphy merely asserts that "he [was] treated
differently than other Pennsylvania Police Officers similarly
situated who do not have interests in . . . memorabilia
collections. . . ." and that he was harassed and intimidated by
Defendants due to his avocation. (Doc. No. 31 at 7.)
A complaint must contain a "short and plain statement of the
claim" that "give[s] the defendant fair notice of what the
plaintiff's claim is and the grounds upon which it rests."
Fed.R.Civ.P. 8(a)(2). The phrase "selective prosecution" has no
unique talismanic significance so as to satisfy the requirements of notice pleading by its mere
use. Plaintiff cannot rest solely upon the bald legal conclusion
that he was "selectively and vindictively prosecute[d]" without
providing Defendants some notice of the offense he claims
constituted selective prosecution and that others similarly
situated were not so prosecuted. (Doc. No 31 at 6.) See
Morse, 132 F.3d at 906. Accordingly, Defendants' motion to
dismiss Murphy's selective prosecution claim will be granted.
If a complaint is vulnerable to 12(b)(6) dismissal, a District
Court must permit a curative amendment, unless an amendment would
be inequitable or futile. Grayson v. Mayview State Hosp.,
293 F.3d 103, 108 (3d Cir. 2002) (citing Shane v. Fauver,
213 F.3d 113, 116 (3d Cir. 2000)). In its last order dismissing Plaintiff
Murphy's selective prosecution claim, this Court granted
Plaintiffs leave to amend their Complaint in order to address,
inter alia, this specific deficiency. (Doc. No. 18.) Although
Plaintiffs filed an Amended Complaint, Plaintiff Murphy fails to
allege sufficient information to raise a claim of selective
prosecution. A plaintiff need not "`be granted a second leave to
amend when [he] was on notice of the complaint's deficiencies and
failed to rectify them with his first amendment.'" Krantz v.
Prudential Invs. Fund Mgmt. Llc, 305 F.3d 140, 144-45 (3d Cir.
2002) (quoting Krantz v. Prudential Investments Fund Management,
LLC, 77 F. Supp. 2d 559, 560 (D.N.J. 1999). Moreover, as a
second leave to amend the complaint will only further unduly
delay this litigation, the Court will not allow Plaintiff Murphy
leave to amend his selective prosecution claim. IV. Order
AND NOW, this 23rd day of November, 2005, for the reasons
discussed above, IT IS HEREBY ORDERED THAT Defendants' motion
to dismiss (Doc. No. 24) is GRANTED. Plaintiff ...