The opinion of the court was delivered by: Ambrose, Chief District Judge.
OPINION and ORDER OF COURT
Defendants seek to dismiss Plaintiff's Amended Complaint, in part. (Docket No. 10). Defendants move for the dismissal of 1) All Defendants in their official capacities; 2) Count One of the Amended Complaint (Whistleblower claim) to the extent said claims arose more than 180 days before the original complaint was filed; and 3) Counts Two and Three of the Amended Complaint (First Amendment claims) to the extent said claims are barred by the statute of limitations. (Docket No. 10, p. 3). After careful consideration of the submissions of the parties, said Motion (Docket No. 10) is granted in part and denied in part as more fully set forth below.
This is an action brought by Plaintiff, Rita Cindrich, a former employee of the Pennsylvania Office of Attorney General, against several current and former officials of the Office of Attorney General ("OAG"). See, Amended Complaint (Docket No. 2). Therein, Plaintiff asserts that Defendants violated Pennsylvania's Whistleblower Law, 43 P.S. §1422, et seq., (Count I)and the First Amendment to the United States Constitution (Counts II and III). Id.
Defendants filed a Motion to Dismiss, In Part, Plaintiff's Amended Complaint. (Docket No. 10). Therein, Defendants move for the dismissal of 1) All Defendants in their official capacities; 2) Count One of the Amended Complaint (Whistleblower claim) to the extent said claims arose more than 180 days before the original complaint was filed; and 3) Counts Two and Three of the Amended Complaint (First Amendment claims) to the extent said claims are barred by the statute of limitations. (Docket No. 10, p. 3). After briefing by the parties, the issues are now ripe for review.
In deciding a motion to dismiss, the Court must accept all the factual allegations as true, and must view the complaint in a light most favorable to the plaintiff. Colburn v. Upper Darby Twp., 838 F.2d 663, 664-65 (3d Cir.1988), cert. denied, 489 U.S. 1065 (1989). I may dismiss a complaint only if it appears beyond a reasonable doubt that the plaintiff fails to offer any factual basis to support its allegations. Craftsmen Local 6 of N.J. Welfare Fund v. Wettlin Assoc., Inc., 237 F.3d 270, 272 (3d Cir. 2001). In ruling on a motion for failure to state a claim, I must look to whether the pleaded facts are sufficient to determine that the complaint is not frivolous and provides defendants with adequate notice to frame an answer. Colburn, 838 F.2d at 666.
While the Court will accept well-pleaded allegations as true for the purposes of the motion, it will not accept unsupported conclusions, unwarranted inferences or sweeping legal conclusions cast in the form of factual allegations. See Miree v. Dekalb County, Ga., 433 U.S. 25, 27 n.2 (1997). In addition, the information plaintiff supplies must be sufficient to outline the elements of the claim, or to permit the inference that these elements exist. See Fed. R. Civ. P. 8(a)(2); Conley v. Gibson, 355 U.S. 41, 45 (1957). With this standard in mind, I now turn to the issues in this case.
Defendants argue that they may not be sued in their official capacities. (Docket No. 16, pp. 4-6). Specifically, Defendants argue that when sued in their official capacities they enjoy the same Eleventh Amendment immunity as a state agency. (Docket No. 16, p. 4). Plaintiff does not disagree with this statement. (Docket No. 12, p. 8). Plaintiff does argue, however, that there are applicable exceptions to the Eleventh Amendment immunity. Id. at 8-9.
With regard to Plaintiff's Whistleblower claim, Defendants appear to agree that "Pennsylvania has also waived immunity by permitting its employees to file whistleblower actions against government employers, including the Commonwealth." (Docket No. 16, p. 5). Yet, they argue that the Whistleblower law does not waive official capacity immunity in this Court. (Docket No. 16, p. 5).
Defendants' theory is based on Rule 25(d)(1) of the Federal Rules of Civil Procedure. Id. Rule 25(d)(1) governs substitution of public officers when they leave office.*fn1 I find this theory has no merit. It is well-established that a suit against a state official in his official capacity is not a suit against the person named, but rather a suit against the public entity. Brandon v. Holt, 469 U.S. 464, 471 (1985). Thus, the issue of who is named in an official capacity suit has no bearing on the issue of immunity. Therefore, ...