The opinion of the court was delivered by: Sylvia H. Rambo United States District Judge
Before the court is Defendants' motion to dismiss Plaintiff's complaint pursuant to Federal Rule of Civil Procedure 12(b)(1) for lack of jurisdiction and Rule 12(b)(6) for failure to state a claim. For the reasons that follow, the motion will be granted in part and denied in part.
Plaintiff, former Chief of Police of the Borough of Dauphin, filed the instant complaint against the named defendants, alleging violations of Plaintiff's rights under the First and Fourteenth Amendment of the United States Constitution, Title VII of the Civil Rights Act, 42 U.S.C. §§ 2000, et seq. ("Title VII"), and the Pennsylvania Human Relations Act, 43 Pa. Con. Stat. Ann.§ 951, et seq. ("PHRA"). (Doc. 1 ¶ 1.) Plaintiff seeks damages, including compensatory damages, back pay, "front pay," and reasonable attorney fees as well as punitive damages from the individual defendants.
The following facts are drawn from Plaintiff's complaint and taken to be true for the purpose of Defendants' motion to dismiss. Plaintiff's claims arise out of an alleged dispute between Plaintiff and Defendants over the hiring of an African-American police officer. (Id. ¶ 10.) In August of 2006 during a Borough of Dauphin ("Dauphin") Council meeting, Plaintiff proposed and advocated for the hiring of an African-American police officer. (Id.) The council "delayed" review of the applicant. (Id. ¶ 8.) According to Plaintiff's complaint, during the period of delay, Defendant Councilman Joseph Wynn frequently used the expression "There is a nigger in the wood pile" and referred to African-Americans as "niggers" and "darkies." (Id. ¶ 9--10.) Plaintiff's complaint alleges that Wynn referred to African-Americans residing in the Borough of Dauphin as "niggers" and stated, "We need to send them back to Harrisburg." (Id. ¶ 11.) Plaintiff alleges that Wynn made the comments to express opposition to hiring the applicant and to deter Plaintiff's support of the applicant. (Id. ¶ 12.)
On November 8, 2006, the Council approved hiring the applicant after a "heated discussion" in which Plaintiff "vigorously advocated" hiring the applicant. (Id. ¶ 13.) On the following day, Defendant Councilman John Windish circulated an email to every Council member and Plaintiff that criticized Plaintiff's participation in Council meetings as well as his performance as Chief of Police. (Id. ¶ 14--15.)
Thereafter, the Defendants began a campaign of humiliating Plaintiff and undermining his capacity to perform his duties as Chief of Police. (Id. ¶ 16--23.) The Council barred Plaintiff from attending Council meetings, an action that had never previously been taken against a Chief of Police. (Id. ¶ 16--17.) From December 2006 until February 2007, the Council required Plaintiff to punch a time clock, a requirement that had never been previously imposed on a Chief of Police. (Id. ¶ 18--19.) The Council took steps to interfere with Plaintiff's ability to conduct police related interviews in his office and in privacy. (Id. ¶ 20.) Council President John Reichard read a letter at a public Council meeting criticizing Plaintiff. (Id. ¶ 21.) Subsequent to this alleged campaign against Plaintiff, Defendant Mayor Terry Searight sent Plaintiff a letter dated February 20, 2007, which suspended Plaintiff from his position as Chief of Police. (Id. ¶ 22.)
On February 20, 2008, Plaintiff filed a complaint pursuant to 42 U.S.C. §§ 1983 and 1985, Title VII, and the PHRA. On April 23, 2008, Defendants moved to dismiss Plaintiff's complaint pursuant to Federal Rule of Civil Procedure 12(b)(1) and Rule 12(b)(6). (Doc. 6.) On May 7, 2008, Defendants filed a brief in support of their motion to dismiss. (Doc. 8.) On May 27, 2008, Plaintiff filed a brief in opposition to Defendants' motion. (Doc. 12.) Defendants filed a reply brief on June 10, 2008. (Doc. 13.) Accordingly, Defendants' motion is ripe for disposition.
II. Motion to Dismiss Pursuant to Fed. R. Civ. P. 12(b)(1)
Defendants seek to dismiss Plaintiff's claims under Title VII and the PHRA pursuant to Fed. R. Civ. P. 12(b)(1) for lack of subject matter jurisdiction. "A motion to dismiss under Rule 12(b)(1) challenges the jurisdiction of the court to address the merits of plaintiff's complaint." Vieth v. Pennsylvania, 188 F. Supp. 2d 532, 537 (M.D. Pa. 2002). Dismissal for lack of jurisdiction is appropriate where the right claimed is "so insubstantial, implausible, foreclosed by prior decisions of this Court, or otherwise completely devoid of merit as not to involve a federal controversy." Kulick v. Pocono Downs Racing Ass'n, Inc., 816 F.2d 895, 899 (3d Cir.1987). "A Rule 12(b)(1) motion is usually considered an appropriate vehicle when the plaintiff has failed to exhaust administrative remedies that are a prerequisite to his suit." Johnson v. United States, 147 F.R.D. 91, 94 (E.D. Pa. 1993) (citing 5A, C. Wright and A. Miller, Federal Practice and Procedure: Civil 2d § 1350 at 195 (1990)); accord Artis v. Greenspan, 474 F. Supp. 2d 16, 17 (D.D.C. 2007) ("Failure to exhaust their administrative remedies deprives a district court of subject matter jurisdiction."). It is well settled that claimants must exhaust prior administrative remedies and procedures under both Title VII and PHRA before bringing a civil action in court. Burgh v. Borough Council of Borough of Montrose, 251 F.3d 465, 469 (3d Cir. 2001).
Plaintiff has failed to plead exhaustion of administrative remedies and procedures. This failure prevents the court from hearing this claim until the Plaintiff amends the complaint to allege exhaustion of administrative remedies and procedures under Title VII and the PHRA.*fn1
III. Motion to Dismiss Pursuant to Fed. R. Civ. P. 12(b)(6)
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, 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, 515 F.3d 224, 232 (3d Cir. 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 Phillips, 515 F.3d at 238--39; Baraka v. McGreevey, 481 F.3d 187, 195 (3d Cir. 2007) (ruling that 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, 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, 515 F.3d at 233. 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, 515 F.3d at 234; Victaulic Co. v. Tieman, 499 F.3d 227, 234 (3d Cir. 2007); Stevenson v. ...