The opinion of the court was delivered by: Sylvia H. Rambo United States District Judge
Plaintiff Sergeant Carol Karchnak has filed suit under 42 U.S.C. § 1983 against her employer, Swatara Township, and her superior officers in the Swatara Police Department, Chief David Bogdanovic, Deputy Captain Jason D. Umberger, and Commissioner Ricci. She alleges that each Defendant violated 1) her First Amendment right to be free of retaliation for the exercise of free speech and 2) her Fourteenth Amendment rights to equal protection of the laws and procedural due process. Defendants filed a motion to dismiss for failure to state a claim upon which relief may be granted. Defendants' motion to dismiss will be granted in part and denied in part. Plaintiff will be given thirty days to amend her complaint, at her option.
Plaintiff's complaint contains the following allegations, all taken as true for purposes of this motion to dismiss. During the time of her employment in the Swatara Police Department, she has engaged in the following behavior:
1) "complaining about policies promulgated and practiced by the defendants" including "quota systems . . . which unlawfully encouraged police officers to produce statistics at the expense of the fair administration of justice" (Compl. ¶¶ 1, 8); 2) participating in the course of litigation and settlement of a lawsuit against the Township for compensation for off-duty care of police dogs (Id. ¶¶ 14-15); 3) reporting a corporal for having a drawing of a naked woman on his desk (Id. ¶¶ 16-17); and 4) reporting to Internal Affairs that a fellow officer was falsifying his patrol logs (Id. ¶¶ 20, 22).
She alleges that this behavior has led to certain acts of retaliation. Specifically, she claims the following: 1) that her participation in the lawsuit led to "serious problems with her employers," being denied promotions (Id. ¶ 15), and Defendants' decision to terminate the contract that provided for leased dog services to the Police Department (Id. ¶ 19), in effect terminating Plaintiff's position as a dog handler; 2) that reporting the corporal led to a fear in her own mind that she would be retaliated against (Id. ¶ 17); 3) that because she reported the falsification of patrol logs, Bogdanovic and Umberger participated in a conversation during which potential retaliation against Plaintiff was mentioned (Id. ¶ 22); and 4) that "the defendants have caused the plaintiff to become the subject of a disciplinary investigation . . . alleging that . . . the ability of the plaintiff to supervise other officers' [sic] is deficient. . . . [because Bogdanovic] believes plaintiff is unable to properly discipline male officers" (Id. ¶ 27).
Plaintiff also claims that the "pattern of retaliation" of "having serious problems with her employers and [being] denied promotions" has "continued unabated." (Id. ¶ 15.) Additionally, the Township has "forged a policy of protecting wrongdoers and retaliating against police officers, including the plaintiff, who complain about official policies or misconduct." (Id. ¶ 1.)
Plaintiff alleges the violation of her Fourteenth Amendment rights to equal protection and due process. In support thereof, she states the following. Her gender is the basis for having suffered unjust discipline, harassment, and other acts of discrimination. (Id. ¶¶ 1, 7b, 23.) She alleges that Ricci intentionally chose persons less qualified than Plaintiff because of "his inclination to select 'good old boys' at the expense of better qualified persons like [P]laintiff." (Id. ¶ 24.) It is not clear for which jobs, tasks, or service Ricci chose these "good old boys" rather than Plaintiff. The Police Department disciplinary procedure has been applied to her in a "different and more harsh [manner] than [it has been applied to] others similarly situated on account of her gender and because she spoke out on matters of public concern." (Id. ¶ 7b.) "[T]he defendants have caused the plaintiff to become the subject of a disciplinary investigation . . . alleging that . . . the ability of the plaintiff to supervise other officers' [sic] is deficient. . . . [because Bogdanovic] believes plaintiff is unable to properly discipline male officers." (Id. ¶ 27.) As a result of the foregoing, Plaintiff claims that she was deprived of "the full benefit of her employment as a police officer, and carries a stigma which may impair or impede her ability to become and remain gainfully employed as a police officer in Swatara or any other jurisdiction." (Id. ¶ 34.) Moreover, the Township "has engaged in a custom, practice, and usage of gender discrimination." (Id. ¶ 1.)
Plaintiff filed her complaint on August 1, 2007. (Doc. 1.) On October 1, 2007, Defendants filed the instant motion to dismiss and brief in support thereof. (Docs. 4-5.) Plaintiff filed her brief in opposition on October 19, 2007. (Doc. 7.) The motion is ripe for disposition.
II. Legal Standard -- Motion to Dismiss for Failure to State a Claim
Among other requirements, a sound complaint must set forth "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2). This statement must "give the defendant fair notice of what the . . . claim is and the grounds upon which it rests." Bell Atlantic Corp. v. Twombly, - U.S. -, 127 S.Ct. 1955, 1964 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). "Fair notice" in Rule 8(a)(2) "depends on the type of case - some complaints will require at least some factual allegations to make out a showing that the pleader is entitled to relief." Phillips v. County of Allegheny, - F.3d -, No. 06-2869, slip op. at 12 (3d Cir. Feb. 5, 2008) (quotation omitted). "A situation may arise where, at some point, the factual detail in a complaint is so undeveloped that it does not provide a defendant the type of notice of claim which is contemplated by Rule 8." Id. A plaintiff must provide "more than labels and conclusions" or "a formulaic recitation of the elements of a cause of action" to show entitlement to relief. Twombly, 127 S.Ct.at 1965; accord, e.g., Phillips, No. 06-2869, slip op. at 11; Baraka v. McGreevey, 481 F.3d 187, 195 (3d Cir. 2007) (The court is not "compelled to accept unsupported conclusions and unwarranted inferences or a legal conclusion couched as a factual allegation." (quotations and citations omitted)); Evancho v. Fisher, 423 F.3d 347, 350(3d Cir. 2005).
A defendant may attack a complaint by a motion under Rule 12(b)(6) for failure to state a claim upon which relief can be granted. In deciding a motion to dismiss under Rule 12(b)(6), the court is required to accept as true all of the factual allegations in the complaint, Erickson v. Pardus, - U.S. -, 127 S.Ct. 2197, 2200 (2007), and all reasonable inferences permitted by the factual allegations, Watson v. Abington Twp., 478 F.3d 144, 150 (3d Cir. 2007), viewing them in the light most favorable to the plaintiff, Kanter v. Barella, 489 F.3d 170, 177 (3d Cir. 2007).
Accord Phillips, No. 06-2869, slip op. at 10, 15. If the facts alleged are sufficient to "raise a right to relief above the speculative level" such that the plaintiff's claim is "plausible on its face," a complaint will survive a motion to dismiss. Twombly, 127 S.Ct. at 1965, 1974; Phillips, No. 06-2869, slip op. at 17; Victaulic Co. v. Tieman, 499 F.3d 227, 234 (3d Cir. 2007); Stevenson v. Caroll, 495 F.3d 62, 66 (3d Cir. 2007). This requirement "calls for enough facts to raise a reasonable expectation that discovery will reveal evidence of" necessary elements of the plaintiff's cause of action. Twombly, 127 S.Ct. at 1965, quoted in Phillips, No. 06-2869, slip op. at 17.
Finally, in the Third Circuit, a court must grant leave to amend before dismissing a civil rights complaint that is merely deficient. See, e.g., Phillips, No. 06-2869, slip op. at 21; Fletcher-Harlee Corp. v. Pote Concrete Contractors, Inc., 482 F.3d 247,252 (3d Cir. 2007); Weston v. Pennsylvania, 251 F.3d 420, 428 (3d Cir. 2001); Shane v. Fauver, 213 F.3d 113, 116-17 (3d Cir. 2000). "Dismissal without leave to amend is justified only on the grounds of bad faith, undue delay, prejudice, or futility." Alston v. Parker, 363 F.3d 229, 236 (3d Cir. 2004).
All claims in this case are brought under 42 U.S.C. § 1983. To state an adequate claim for relief under that statute, a plaintiff must allege that a defendant, acting under the color of state law, subjected her or caused her to be subjected to the deprivation of her Constitutional or federal rights. § 1983. A plaintiff must allege that each defendant "individually participated in the alleged constitutional violation or approved of it." C.N. v. Ridgewood Bd. of Educ., 430 F.3d 159, 173 (3d Cir. 2005). The corollary in municipal liability is that the plaintiff must allege that the municipality itselfcaused a constitutional violation. Monell v. Dep't of Soc. Servs., 436 U.S. 658, 694 (1978). Respondeat superior is not a viable theory of municipal liability under § 1983; rather, a plaintiff must plead and prove that "through its deliberate conduct, the municipality was the 'moving force' behind the injury." Brown, 520 U.S. at 405; accord Jett, 491 U.S. at 737. To do so, ...