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D'Altilio v. Dover Township

September 26, 2007

MICHAEL D'ALTILIO, PLAINTIFF
v.
DOVER TOWNSHIP, ET AL., DEFENDANTS



The opinion of the court was delivered by: Judge Conner

MEMORANDUM

Presently before the court is the motion (Doc. 11) of defendants Dover Township, Dover Township Board of Supervisors, and Supervisors Madelyn Shermeyer, Shane Patterson, Michael Husson,*fn1 Donald Bonsell, and Duane Hull to dismiss the complaint (Doc. 1) of plaintiff Michael D'Altilio ("D'Altilio"). For the reasons that follow, the defendants' motion will be granted.

I. Factual Background*fn2

Beginning on December 29, 2003, defendant Dover Township employed D'Altilio as its Director of the Department of Public Works. (Doc. 1 ¶¶ 18.) Township ordinances required D'Altilio to undergo a six-month probationary period. (Id. ¶ 22.) Near the end of this period, he requested a review from Township Manager Michael Morris ("Morris"), who commended D'Altilio's performance. (Id. ¶ 26.) Morris relayed his assessment to defendant Dover Township Board of Supervisors ("the board"). (Id. ¶ 27.) Despite this positive review, defendant Supervisor Madelyn Shermeyer ("Shermeyer") discussed with Morris the possibility of placing D'Altilio on an additional ninety days' probation. (Id. ¶ 26.) The board eventually did so, and Shermeyer instructed Morris to investigate D'Altilio's performance during that period. (Id. ¶¶ 26, 28, 33.) At the end of the additional probationary period and upon another positive report from Morris, the board granted D'Altilio permanent employment status, with Shermeyer and defendant Supervisor Donald Bonsell ("Bonsell") dissenting (Id. ¶ 35-37.)

On several occasions around this time, Shermeyer made derogatory remarks about D'Altilio in public areas of the township building, referring to him as "Mafia Mike" because of his Italian ethnicity and as "Humpty-Dumpty" because of his size and weight. (Id. ¶ 30.) Bonsell made offensive comments about D'Altilio's work attire, and both supervisors commented to other township employees that D'Altilio "'[wasn't] one of us'". (Id. ¶ 31-32.) They also meddled with his management of the Department of Public Works by criticizing his handling of Township projects and by interfering with personnel decisions when he hired a new employee for a position approved by the board. (Id. ¶¶ 39-41.)

At a board meeting held December 13, 2004, Shermeyer moved to discharge D'Altilio, and the board approved the motion. (Id. ¶¶ 42, 49.) Shermeyer, Bonsell, and defendant Supervisor Duane Hull ("Hull") voted in favor of discharge; Supervisors Michael Husson and Shane Patterson dissented. (Id. ¶¶ 43, 47, 49.) This discharge violated a township resolution, which grants the township manager sole authority to terminate an employee. (Id. ¶¶ 50-51.) After his dismissal, D'Altilio received a letter stating that the board had terminated his employment, but he neither received a reason for the discharge nor was given a hearing in which to challenge it. (Id. ¶¶ 52-53, 55.) Failure to afford D'Altilio notice and a hearing violated provisions of the same resolution conferring sole termination authority on the township manager. (Id. ¶ 55.)

D'Altilio filed the present action on September 28, 2006. He alleges violations of his substantive due process, procedural due process, and equal protection rights under 42 U.S.C. §§ 1983 and 1988,*fn3 as well as under the Constitution of the Commonwealth of Pennsylvania (Counts I, II, and III).*fn4 He also alleges a conspiracy claim under 42 U.S.C. § 1985(3)*fn5 (Count VI) and a state-law claim under the Pennsylvania Human Relations Act (Counts VIII and IX).*fn6 On December 14, 2006, the defendants filed a motion to dismiss the complaint (Doc. 11) under Rule 12(b)(6) of the Federal Rules of Civil Procedure. The motion has been fully briefed and is ripe for disposition.

II. Standard of Review

Rule 12(b)(6) of the Federal Rules of Civil Procedure provides for the dismissal of claims that fail to state a claim upon which relief can be granted. FED. R. CIV. P. 12(b)(6). When ruling on a motion to dismiss under Rule 12(b)(6), the court must "accept as true all factual allegations in the complaint and all reasonable inferences that can be drawn therefrom, and view them in the light most favorable to the plaintiff." Kanter v. Barella, 489 F.3d 170, 177 (3d Cir. 2007) (quoting Evancho v. Fisher, 423 F.3d 347, 350 (3d Cir. 2005)). Although the court is generally limited in its review to the facts in the complaint, it "may also consider matters of public record, orders, exhibits attached to the complaint and items appearing in the record of the case." Oshiver v. Levin, Fishbein, Sedran & Berman, 38 F.3d 1380, 1384 n.2 (3d Cir. 1994); see also In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1426 (3d Cir. 1997).

Federal notice pleading rules do not require plaintiffs to allege affirmatively every aspect of their claims, but only to present sufficient facts to allow the opposing party to conduct discovery and prepare a defense. See FED. R. CIV. P. 8(a) (stating that the complaint should include "a short and plain statement of the claim showing that the pleader is entitled to relief"); see also Bell Atl. Corp. v. Twombly, ____ U.S. ____, 127 S.Ct. 1955, 1964-65 (2007). Thus, courts should not dismiss a complaint for failure to state a claim unless "it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Id.; see Swierkiewicz v. Sorema N.A., 534 U.S. 506, 514 (2002). Under this liberal pleading standard, courts should generally grant plaintiffs leave to amend their claims before dismissing a complaint that is merely deficient. See Grayson v. Mayview State Hosp., 293 F.3d 103, 108 (3d Cir. 2002); Shane v. Fauver, 213 F.3d 113, 116-17 (3d Cir. 2000).

III. Discussion

D'Altilio's alleges violations of his substantive due process, procedural due process, and equal protection claims under 42 U.S.C. § 1983. He also asserts a conspiracy claim under 42 U.S.C. § 1985 in addition to state law claims arising under the Pennsylvania Constitution and the Pennsylvania Human Relations Act.

A. The §§ 1983 and 1985 Claims

D'Altilio asserts claims under 42 U.S.C. §§ 1983 and 1985 arising from alleged deprivations of his civil rights. These sections create no substantive rights but instead provide a remedy for infringement of rights created by other federal law. See City of Okla. City v. Tuttle, 471 U.S. 808, 816 (1985); Great Am. Fed. Sav. & Loan Ass'n v. Novotny, 442 U.S. 366, 376 (1979). A § 1983 claim requires a plaintiff to allege that some person has deprived the plaintiff of a federal right under the color of state law. See Gomez v. Toledo, 446 U.S. 635, 640 (1980). D'Altilio asserts claims against Dover Township, its Board of Supervisors, and the individual Supervisors in their official and individual capacities. The court will address the claims against each defendant seriatim.

1. Dover Township

A municipality may be held liable under §§ 1983 or 1985 only if the plaintiff can "identify a municipal 'policy' or 'custom' that caused the plaintiff's injury." Colburn v. Upper Darby Twp., 946 F.2d 1017, 1027 (3d Cir. 1991) (citing Monell v. Dep't of Social Servs., 436 U.S. 658, 694 (1978)); see also Maisonet v. City of Phila., No. 06-4858, 2007 WL 1366879, at *3 (E.D. Pa. May 7, 2007) (citing Owens v. Haas, 601 F.2d 1242, 1247 (2d Cir. 1979); Edwards v. City of Phila., No. 05-18, 2006 WL 3337490, at *6 (E.D. Pa. Nov. 15, 2006). In the instant case, D'Altilio has failed to identify any policy, custom, or practice of Dover Township that violated his civil rights. Accordingly, his §§ 1983 and 1985 claims against Dover Township must fail, and the motion to dismiss will be granted. However, the court will grant D'Altilio leave to file an amended complaint identifying a specific township policy, custom, or practice that caused his alleged injury.

2. Dover Township Board of Supervisors

For purposes of assessing civil rights liability, a subunit of a local government is identical to the local government itself. See Martin v. Red Lion Police Dep't, 146 F. App'x 558, 562 n.3 (3d Cir. 2005) (citing Johnson v. City of Erie, 834 F. Supp. 873, 878-79 (W.D. Pa. 1993) (holding that defendant municipal police department is redundant of defendant borough because department was merely the vehicle through which the borough conducts its police activities); Satterfield v. Borough of Schuylkill Haven, 12 F. Supp. 2d 423, 431 (E.D. Pa. 1998) (characterizing the borough council as redundant defendant because plaintiff also sued the borough itself). Therefore, a plaintiff cannot maintain a suit against both a local government and its constituent departments and agencies. Glickstein v. Neshaminy Sch. Dist., No. Civ.A.96-9236, 1997 WL 660636, at *3 (E.D. Pa. Oct. 22, 1997) (granting dismissal of a school board as identical to the school district ).

Because the Dover Township Board of Supervisors is a subunit of Dover Township in this case, the board is a redundant defendant. Accordingly, the motion to dismiss the ยงยง 1983 and 1985 claims against the Dover Township Board of Supervisors will be granted. Leave to amend the claims against the board will be ...


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