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Diana v. Oliphant

August 21, 2006

MARIO J. DIANA, PLAINTIFF,
v.
WILLARD OLIPHANT AND CARMEN ALTAVILLA, DEFENDANTS.



The opinion of the court was delivered by: Judge Caputo

MEMORANDUM

Presently before the Court is Defendants' Motion to Dismiss (Doc. 5). For reasons set forth below, I will grant the motion in part and deny it in part. The Court has jurisdiction pursuant to 28 U.S.C. § 1331 and 28 U.S.C. § 1367.

BACKGROUND

According to the facts as alleged in Plaintiff's Complaint, this case arises out of a recorded phone conversation between Plaintiff Mario J. Diana and Defendant Willard Oliphant on November 20, 2003. (Doc. 1, ¶ 13.) Defendant Oliphant and Plaintiff's immediate supervisor within the Pennsylvania State Police, Defendant Carmen Altavilla, concocted a scheme to call Plaintiff and record the conversation in an attempt to subvert Plaintiff's pending worker's compensation claim. (Doc. 1, ¶ 14.) Plaintiff was not notified that Defendant Oliphant was recording the conversation. (Doc. 1, ¶ 15.) During the litigation of Plaintiff's worker compensation claim, Plaintiff's attorney requested a copy of the taped conversation. (Doc. 1, ¶ 19.) A copy was provided. Id.

On November 11, 2005, Plaintiff filed a Complaint alleging civil rights violations of his First, Fourth, and Fourteenth Amendment rights, and claims under the Federal Communications Act and under the Pennsylvania's Wiretap Act. (Doc. 1, ¶¶ 7-12.) On January 6, 2006, Defendants filed the present Motion to Dismiss. (Doc. 5.) This motion is fully briefed and ripe for disposition.

LEGAL STANDARD

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).

DISCUSSION

1. First Amendment Retaliation Claim

Defendants argue that Plaintiff has failed to state a claim upon which relief may be granted for retaliation under the First Amendment. Plaintiff acknowledges that he has not alleged a prima facie case for retaliation based on protected speech, but argues that he has stated a claim for retaliation based his right to petition the Government for redress. For the following reasons, I agree that Plaintiff has stated a claim under the First Amendment regarding his right to petition.

a. Right to Petition

The First Amendment provides, in part, that "Congress shall make no law . . . abridging . . . the right to petition the Government for a redress of grievances." U.S. Const. amend. I. The First Amendment's Petition Clause, in other words, protects individuals from retaliation for filing non-sham lawsuits, grievances, and other petitions directed at the government or its officials. See, e.g., San Filippo v. Bongiovanni, 30 F.3d 424, 439 (3d Cir. 1994), cert. denied, 513 U.S. 1082 (1995). The term "lawsuit" has been used to encompass any device invoking a formal mechanism for redress of grievances against the government. Id., at 440 n.18. Further, a claim under 42 U.S.C. ยง 1983 ...


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