The opinion of the court was delivered by: A. Richard Caputo United States District Judge 9
Presently before the Court is Defendants West Pittston Borough, Ralph Zezza, Carl Rosencrance, Ray Ramage, Joseph Delucca, Drew Smith and William Rowe's Motion to Dismiss (Doc. 10).For the reasons set forth below, the Court will grant Defendants' motion in part and deny it in part. The Court has jurisdiction over this matter pursuant to 28 U.S.C. § 1331 and 28 U.S.C. § 1367.
Plaintiff Joseph J. Campbell was employed by the Police Department in the Borough of West Pittston ("Police Department") for twenty-two (22) years. (Doc. 1 ¶ 13.) On February 1, 2005, at a meeting of the Borough Council for the Borough of West Pittston ("Council"), Defendants voted to terminate Plaintiff from his employment with the Police Department due to alleged misconduct. (Doc. 1 ¶ 23.) In particular, Plaintiff was alleged to have been working part-time at a second job with Century Security Services, Inc., in his off duty hours. (Doc. 1 ¶ 24.) Plaintiff asserts that the Borough of West Pittston did not have a policy concerning working during off duty hours. (Doc. 1 ¶ 25.) At all times relevant, Plaintiff was forty-two (42) years of age and the oldest member of the Police Department. (Doc. 1 ¶¶ 14-15.)
Prior to Plaintiff's termination, on September 7, 2004, Defendants Rowe, Rosencrance, Ramage, Delucca and Smith caused a Praecipe and Summons to be filed in the Court of Common Pleas of Luzerne County. (Doc. 1 ¶ 16.) Pursuant to the Praecipe and Summons, these Defendants caused a subpoena to be issued to Century Security Services, Inc., demanding release of any and all wage records pertaining to Plaintiff. (Doc. 1 ¶ 17.)
Then, by letter dated November 5, 2004, Defendant Zezza ordered Plaintiff to be present at a Council meeting to discuss the alleged concerns of misconduct. (Doc. 1 ¶ 19.) On December 8, 2004, Defendant Rowe sent Plaintiff a letter placing him on paid administrative leave. (Doc. 1 ¶ 20.) On January 11, 2005, Defendant Rowe sent Plaintiff another letter notifying him that he was subject to disciplinary action. (Doc. 1 ¶ 21.) Finally, on January 26, 2005, Defendant Rowe sent Plaintiff a letter notifying him that he had been suspended without pay and recommending that he be terminated from his position with the Police Department. (Doc. 1 ¶ 22.)
Following Plaintiff's termination at the February 1, 2005 meeting, Plaintiff was replaced by younger individuals under the age of forty (40). (Doc. 1 ¶ 28.)
Rule 12(b)(6) of the Federal Rules of Civil Procedure provides for the dismissal of a complaint, in whole or in part, for failure to state a claim upon which relief can be granted. Dismissal is appropriate only if, accepting all factual allegations in the complaint as true and "drawing all reasonable inferences in the plaintiff's favor, no relief could be granted under any set of facts consistent with the allegations in the complaint." Trump Hotels & Casino Resorts, Inc. v. Mirage Resorts Inc., 140 F.3d 478, 483 (3d Cir. 1998).
In deciding a motion to dismiss, the Court should consider the allegations in the complaint, exhibits attached to the complaint and matters of public record. See Pension Benefit Guar. Corp. v. White Consol. Indus., Inc., 998 F.2d 1192, 1196 (3d Cir. 1993). The Court may also consider "undisputedly authentic" documents where the plaintiff's claims are based on the documents and the defendant has attached a copy of the document to the motion to dismiss. Id. The Court need not assume that the plaintiff can prove facts that were not alleged in the complaint, see City of Pittsburgh v. West Penn Power Co., 147 F.3d 256, 263 (3d Cir. 1998), nor credit a complaint's "bald assertions" or "legal conclusions." Morse v. Lower Marion Sch. Dist., 132 F.3d 902, 906 (3d Cir. 1997).
When considering a Rule 12(b)(6) motion, the Court's role is limited to determining whether the plaintiff is entitled to offer evidence in support of the claims. See Scheuer v. Rhodes, 416 U.S. 232, 236 (1974). The Court does not consider whether the plaintiff will ultimately prevail. See id. In order to survive a motion to dismiss, the plaintiff must set forth information from which each element of a claim may be inferred. See Kost v. Kozakiewicz, 1 F.3d 176, 183 (3d Cir. 1993). The defendant bears the burden of establishing that the plaintiff's complaint fails to state a claim upon which relief can be granted. See Gould Elecs. v. United States, 220 F.3d 169, 178 (3d Cir. 2000).
Defendants first seek dismissal of Plaintiff's § 1983 claims based on violations of the substantive due process component of the Fourteenth Amendment on the basis that Plaintiff has failed to identify a fundamental right, at issue, entitled to substantive due process protection. Plaintiff counters that the present case involves a fundamental property right, the right to privacy, the right to be free from abusive use of process, and the right to be free from slander and libel. I find that none of the rights articulated by Plaintiff in the Complaint are fundamental rights entitled to substantive due process protection.
Notably, public employment, the property right at issue in the present case, is not a fundamental property interest entitled to substantive due process protection. See Nicholas v. Pennsylvania State Univ., 227 F.3d 133, 142 (3d Cir. 2000). Further, there are two clearly identifiable zones of privacy which have been afforded protection under substantive due process: (1) one's interest in avoiding the disclosure of personal matters; and (2) the right to autonomy and independence in personal decision-making. Whalen v. Roe, 429 U.S. 589, 599-600 (1977). As noted by the Third Circuit Court of Appeals, "[c]ases in the latter category describe the liberty interests in matters relating to marriage, procreation, contraception, family relationships, and child rearing and education." Doe v. Delie, 257 F.3d 309, 317 n.5 (3d Cir. 2001). None of these privacy issues are raised in the Complaint in the present case. Furthermore, the other "rights" articulated by Plaintiff cannot be deemed fundamental rights and, as such, also do not fall within the protections of the substantive component of the due process clause. Therefore, I will grant Defendants' motion with regard to Plaintiff's § 1983 claims based on violations of the substantive due process component of the Fourteenth Amendment.
Defendants, next, seek dismissal of Plaintiff's § 1983 claims based on the First Amendment because Plaintiff has failed to allege that he engaged in an activity protected under the First Amendment. Plaintiff counters that freedom from libel is on of the protections ...