The opinion of the court was delivered by: Ambrose, Chief District Judge.
OPINION and ORDER OF COURT
Pending before the Court is a Motion to Dismiss Counts III, IV and the individual defendants from Plaintiff's Complaint. (Docket No. 6). Plaintiff has filed a Brief in Opposition thereto. (Docket No. 9). After careful consideration of the submissions of the parties, and based on my Opinion set forth below, said Motion is denied.
This action arises out of the disciplinary action taken against Cory Johnson by Defendants for making the remark: "If I were Osama, I would already have pulled a Columbine." At the time of the remark, Plaintiff was a senior in the New Brighton Area School District. Plaintiff was suspended for ten days for making the remark that Defendants viewed as a "terroristic threat." Plaintiff filed a Complaint asserting violations of his First Amendment rights (Count I), violation of his right to free speech pursuant to Article I §7 of the Constitution of Pennsylvania (Count II), violation his of his right to due process under the Fourteenth Amendment (Count III), and a violation of the Pennsylvania School Code, 22 Pa. Code §12.6.*fn1 (Docket No. 1). In response, Defendants filed a Motion to Dismiss Counts III and IV and the individual Defendants. (Docket No. 6). Plaintiff has filed a Brief in Opposition thereto. (Docket No. 9). The issues are now ripe for review.
In deciding a Motion to Dismiss all factual allegations, and all reasonable inferences therefrom, must be accepted as true and viewed in the light most favorable to the plaintiff. Colburn v. Upper Darby Township, 838 F.2d 663, 666 (3d Cir. 1988), cert. denied, 489 U.S. 1065 (1988); Warth v. Seldin, 422 U.S. 490, 501-02 (1975). While a court will accept well-pleaded allegations as true for the purposes of the motion, it will not accept legal or 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 (1977). I may dismiss a complaint only if it appears beyond a reasonable doubt that the plaintiff can prove no set of facts in support of his claims which would entitle him to relief. Conley v. Gibson, 355 U.S. 41, 45 (1957).
Standing is a jurisdictional requirement. FW/PBS, Inc. v. City of Dallas, 493 U.S. 215, 231 (1990). Thus, in cases where the "case or controversy" standing requirement under Article III, §2 of the United States Constitution is at issue, the plaintiff bears the burden of proof.Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992); Pennsylvania Psychiatric Society v. Green Spring Health Services, Inc., 280 F.3d 278, 283 (3d Cir. 2002). At the motion to dismiss stage, "general factual allegations of injury resulting from the defendant's conduct may suffice...." Lujan, 504 U.S. at 561 (citation omitted).
Defendants assert that Plaintiff's due process claim should be dismissed for failure to state a claim. (Docket No. 7, pp. 3-4). Specifically, Defendants argue that the suspension was for ten days, and "[t]here exists no right to appeal an administrative suspension of ten days or less." (Docket No. 7, p. 3). Further, Defendants contend that because the administration of the public school system is left to the discretion of the state and local authorities, Plaintiff must assert that the conduct of Defendants was arbitrary and capricious. (Docket No. 7, p. 4).
With regard to Defendants' first argument, I find they misconstrue Plaintiff's Complaint. Plaintiff is not appealing his suspension under Count III. Rather, he is asserting a constitutional violation of due process. See, Docket No. 1. As a result, I find no merit to Defendants argument in this regard.
With regard to Defendants' second argument, I have found no authority that Plaintiff must plead that Defendants' conduct was arbitrary and capricious to state a claim for a due process violation. In the absence of the same, I decline to impose such a ...