The opinion of the court was delivered by: Judge McClure
On March 10, 2006, plaintiff Kurt Thompson initiated this civil rights action by filing a complaint naming Mark Lehman, Andrew Lyon, and Cheryl Brungard as defendants. Lehman is the Mayor of Jersey Shore Borough, Pennsylvania, Lyon is a Borough Council Member, and Brungard is the Borough Council President. Plaintiff alleges that the defendants deprived him of his First Amendment right to free speech by preventing him from speaking on matters of public concern at Jersey Shore Borough Council meetings. Plaintiff also complains that defendants retaliated against him for engaging in protected speech. Counts I, II, and III assert claims under 42 U.S.C. § 1983 against defendants Lehman, Lyon, and Brungard, respectively, and Count IV asserts a claim under 42 U.S.C. § 1985(3) against Lehman and Lyon.
On July 10, 2006, all defendants moved to dismiss the complaint with prejudice pursuant to Federal Rule of Civil Procedure 12(b)(6). (Motion to Dismiss, Rec. Doc. No. 3; Brief in Support, Rec. Doc. No. 4.) The motion is fully briefed and ripe for our review. For the following reasons, we will deny the motion.
I. Motion to Dismiss Standard
The defendants argue that the complaint must be dismissed pursuant to Federal Rule of Civil Procedure 12(b)(6) for "failure to state a claim upon which relief can be granted." Fed. R. Civ. P. 12(b)(6).
When considering a motion to dismiss under Rule 12(b)(6), the court must view all allegations stated in the complaint as true and construe all inferences in the light most favorable to plaintiff. Hishon v. King & Spalding, 467 U.S. 69, 73 (1984); Kost v. Kozakiewicz, 1 F.3d 176, 183 (3d Cir. 1993). In ruling on a motion to dismiss, the court primarily considers the allegations of the pleading, but is not required to consider legal conclusions alleged in the complaint. Kost, 1 F.3d at 183. At the motion to dismiss stage, the court considers whether plaintiff is entitled to offer evidence to support the allegations in the complaint. Maio v. Aetna, Inc., 221 F.3d 472, 482 (3d Cir. 2000). A complaint should be dismissed only if the court, from evaluating the allegations in the complaint, is certain that under any set of facts relief cannot be granted. Conley v. Gibson, 355 U.S. 41, 45-46 (1957); Morse v. Lower Merion School Dist., 132 F.3d 902, 906 (3d Cir. 1997); Markowitz v. Northeast Land, Co., 906 F.2d 100, 103 (3d Cir. 1994).
The failure-to-state-a-claim standard of Rule 12(b)(6) "streamlines litigation by dispensing with needless discovery and factfinding." Neitzke v. Williams, 490 U.S. 319, 326-27 (1989). A court may dismiss a claim under Rule 12(b)(6) where there is a "dispositive issue of law." Id. at 326. If it is beyond a doubt that the non-moving party can prove no set of facts in support of its allegations, then a claim must be dismissed "without regard to whether it is based on an outlandish legal theory or on a close but ultimately unavailing one." Id. at 327.
The liberal notice pleading standard set forth in Rule 8(a)(2), requiring only "a short and plain statement of the claim showing that the pleader is entitled to relief," applies in civil rights cases. Leatherman v. Tarrant County Narcotics Intelligence and Coordination Unit, 507 U.S. 163 (1993); Evancho v. Fisher, 423 F.3d 347, 352 (3d Cir. 2005) ("Since Leatherman, which was decided in 1993, the Third Circuit has applied the more liberal notice pleading standard set forth in Rule 8(a) in civil rights cases."); Abbott v. Latshaw, 164 F.3d 141 (3d Cir. 1998). "The notice pleading standard of Federal Rule of Civil Procedure 8(a) requires only that a complaint contain a short and plain statement showing a right to relief, not a detailed recitation of the proof that will in the end establish such a right." Graw v. Fantasky, 68 F. App'x 378, 381 (3d Cir. 2003) (quoting Pryor v. Nat'l Collegiate Athletic Ass'n, 288 F.3d 548, 564 (3d Cir. 2002)).
There are three distinct claims in plaintiff's complaint. Plaintiff alleges that (1) his First Amendment right to free speech was violated; (2) the defendants unlawfully retaliated against plaintiff for engaging in protected speech; and (3) defendants Lehman and Lyon conspired to deprive plaintiff of equal protection of the laws because of plaintiff's speech. Defendants have moved to dismiss all claims, with prejudice. Below we evaluate each claim separately, as well as defendants' assertion of qualified immunity..
"For a right to speak claim, a plaintiff must allege that: (1) the speech was protected by the First Amendment and (2) the government excluded the plaintiff's speech in a public or non-public forum without justifying its actions to the ...