The opinion of the court was delivered by: Terrence F. McVerry United States District Court Judge
MEMORANDUM OPINION AND ORDER OF COURT
Before the Court for consideration and disposition is a MOTION TO DISMISS AMENDED COMPLAINT, with brief in support (Document Nos. 14 & 15) filed by the County of Beaver ("Defendant").*fn1 The matter has been fully briefed. See Plaintiff's RESPONSE AND BRIEF TO MOTION TO DISMISS (Document No. 17) and Defendant's REPLY BRIEF TO PLAINTIFF'S RESPONSE AND BRIEF TO MOTION TO DISMISS (Document No. 18).
Plaintiff Richard R. Thompson ("Plaintiff") worked as a Program Monitor/ Aging Care Manager in the Beaver County Area Agency on Aging (the "Agency"). Brief, exh. A at ¶ 1. On November 25, 2003, he was terminated from employment due to "exorbitant and inappropriate use of the county computer system ..." Id. at ¶ 2. Essentially, Plaintiff spent a lot of time at work surfing the Internet, and during that time he visited websites which contained sexually explicit content. Id. at ¶¶ 21-24. Plaintiff challenged his termination by filing an appeal with the Pennsylvania State Civil Service Commission ("the Commission"). Id. at unnumbered 1. A hearing on the matter was held on February 12, 2004. Id. The issues before the Commission were 1) whether the Agency had just cause to terminate Plaintiff's employment, and 2) whether Plaintiff's termination was motivated by anti-union retaliation.*fn2 Id. Plaintiff was represented by counsel during these proceedings. Id.
In an opinion handed down on June 24, 2004, the Commission found that the Agency established just cause for Plaintiff's removal, and that Plaintiff failed to present evidence which established anti-union retaliation. Brief, exh. 1 at unnumbered 17. Plaintiff, acting pro se, appealed the decision of the Commission to the Commonwealth Court of Pennsylvania. Brief, exh. 2; Thompson v. State Civil Service Comm'n., 863 A.2d 180 (Pa. Commw. Ct. 2004), appeal denied, 877 A.2d 463 (Pa. 2005). Plaintiff argued, inter alia, that the Agency's Internet policy violated his rights under the First and Fourteenth Amendments, and that his termination did not comport with due process. Thompson, 863 A.2d at 184 & n.1. The Commonwealth Court affirmed the decision of the Commission, and also held that Plaintiff waived his constitutional challenges to the Agency's Internet policy by failing to raise said issues before the Commission. Id. at 184 n.1. Plaintiff petitioned the Pennsylvania Supreme Court for allowance of appeal, which was denied on June 7, 2005. 877 A.2d 463 (Pa. 2005). No petition for certiorari was filed.
On February 7, 2005, Plaintiff, again acting pro se, filed a Complaint in the United States District Court for the Western District of Pennsylvania. The caption of the Complaint named the County of Beaver as the only defendant, but also referenced the Honorable Daniel Donatella as the Chairman of the County of Beaver Board of Commissioners.*fn3 Complaint at unnumbered 1. The County of Beaver, in turn, filed a Motion to Dismiss. See Document No. 5. Rather than oppose the Motion to Dismiss, Plaintiff sought leave to file an Amended Complaint, which was granted. See Document Nos. 8 & 9. On May 3, 2005, Plaintiff filed an Amended Complaint in which he alleges the following:
On November 25, 2003 Plaintiff was notified by written document of his termination of employment with the Beaver County Office on Aging, an entity of the County of Beaver. That document specifically predicated termination of Plaintiff's employment based on alleged "violation's" (sic) of County's "Computer Internet Usage Policy." This document as written and as applied to the Petitioner/Plaintiff and all employees of Beaver County is in violation of the U.S. Constitution.
Amended Complaint at ¶ 4. The Amended Complaint also reflects that the Court's jurisdiction is founded on constitutional questions, specifically the First Amendment (as incorporated by the Fourteenth Amendment), as well as procedural and substantive due process under the Fourteenth Amendment. Id. at ¶ 3.
The only significant difference between the Complaint and the Amended Complaint is that in paragraph 2 of the Amended Complaint, Plaintiff added the following language: "Individual Defendants: Richard Darbut Director of Employee Relations for the County of Beaver; .R. Brandon James Administrator (former) of Beaver County Office on Aging and Linda Hall, Planner/ Administrative Officer Beaver County Office on Aging." The aforementioned individuals were never served with a summons or a copy of the Amended Complaint, the caption still reflects that the County of Beaver is the only defendant, and there are no factual allegations which specifically address any of the aforementioned individuals. Therefore, the County of Beaver posits that "[t]he failure to include any specific factual information about the three named 'defendants' supports the position that there is really no change to the pleading in terms of the parties who have been sued." Mot. to Dismiss Amended Complaint at ¶ 8. Plaintiff's response to the Motion to Dismiss Amended Complaint refers to "Defendant" in the singular and does not otherwise challenge the County of Beaver's assertion that the aforementioned individuals are not defendants in this action.
In order to resolve the lack of clarity regarding who is, and is not, a defendant in this matter, the Court issued a show cause order. Document No. 19. The show cause order stated, in part, as follows:
[I]t is hereby ORDERED that on or before December 30, 2005, Plaintiff shall file with the Court a pleading which addresses the following issues:
1) Plaintiff shall affirmatively state whether the Amended Complaint names Hon. Daniel Donatella, Richard Darbut, R. Brandon James and Linda Hall as defendants in this action;
2) If Hon. Daniel Donatella, Richard Darbut, R. Brandon James and Linda Hall are named as defendants in this action, Plaintiff shall affirmatively state whether said individuals have been sued in their official or individual capacities; and
3) If Hon. Daniel Donatella, Richard Darbut, R. Brandon James and Linda Hall are named as defendants in this action, Plaintiff shall show cause as to why said individuals have not been served ...