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Swedron v. Borough

November 21, 2008


The opinion of the court was delivered by: Arthur J. Schwab United States District Judge

Electronically Filed


I. Introduction and Factual Background

Pursuant to the agreement of the parties following an informal supplemental case management discussion with the Court's law clerk (see Minute Entry for September 15, 2008), plaintiff Robert Swedron, Jr. filed a Second Amended Complaint, which mooted the municipal defendants' then pending motion to dismiss (doc. no. 18).*fn1 Accordingly, the Court entered an Order (doc. no. 29) denying that motion to dismiss the initial Amended Complaint as moot.

Plaintiff thereafter timely filed his Second Amended Complaint (doc. no. 30) against Baden Borough, Baden Borough Police Officer Jerry D. Olson, Baden Borough Police Officer Jack Spencer, Baden Borough Police Chief Daniel Colaizzi, and Mary Swedron.*fn2 Plaintiff's Second Amended Complaint seeks damages arising from the "deprivation of rights secured by the First, Fourth, Ninth, and Fourteenth Amendments to the United States Constitution, pursuant to 42 U.S.C. §1983, and Pennsylvania common law... [based on alleged] tortious and unconstitutional conduct, policies, acts, and omissions occurring from November 11, 2007 through the present[, and]... is brought against the individual municipal police officer defendants in both their official and individual capacities." Second Amended Complaint ¶¶ 1-2. Plaintiff alleges that he complained to the Baden Police Chief, Daniel Colaizzi, about police harassment stemming from Officer Olson's alleged romantic involvement with plaintiff's wife, defendant Mary Swedron, and that not only did the chief do nothing to stop the harassment, it actually grew worse, culminating with his arrest by Officer Spencer on February 14, 2008 on charges of child abuse, which were without probable cause and were dismissed as unfounded.

In plaintiff's own words, the "gravamen of Plaintiff's Second Amended Complaint is that he was subjected to a false arrest and malicious prosecution, which violated his rights under the First (retaliation for complaining about police harassment) and Fourth Amendments." Plaintiff's Memorandum in Opposition to Defendants' Partial Motions to Dismiss (doc. no. 44) at 4. Specifically, the Second Amended Complaint states the following causes of action: Count I: "VIOLATION OF CONSTITUTIONAL RIGHTS-Defendants: Officers Olson and Spencer in Both Their Official and Individual Capacity (Claim for Compensatory Damages)"; Count II: "VIOLATION OF CONSTITUTIONAL RIGHTS-Defendants: Officers Olson and Spencer in Their Individual Capacities Only (Claim for Punitive Damages)"; Count III: "VIOLATION OF CONSTITUTIONAL RIGHTS-Defendant: Borough of Baden and Chief Colaizzi (Claim for Compensatory Damages)"; Count IV: "CONSPIRACY TO VIOLATE CIVIL RIGHTS-Defendants: Officer Olson, Officer Spencer, and Mary Swedron (Claim for Compensatory Damages)"; Count V: "INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS-Defendants: Officers Olson and Spencer (Claim for Compensatory Damages)"; Count VI: "MALICIOUS PROSECUTION-Defendants: Officer Olson, Officer Spencer, and Mary Swedron (Claim for Compensatory and Punitive Damages)."

Defendant Swedron has filed an answer to the Second Amended Complaint; Baden Borough, Officer Spencer and Chief Colaizzi filed a Motion to Dismiss in Part Pursuant to Rule 12(b)(6) Filed in Response to Plaintiff's Second Amended Complaint (doc. no. 32), and Officer Olson filed a separate Motion to Dismiss in Part Pursuant to Rule 12(b)(6) (doc. no. 36). After careful consideration of said motions and the briefs in support of partial dismissal, and plaintiff's response and memorandum in opposition to both motions, the Court will grant in part and deny in part the motions to dismiss.

II. Motion to Dismiss Standards

In deciding a motion to dismiss pursuant to Fed.R.Civ.P. Rule 12(b)(6), the Court accepts the well-pleaded factual allegations of the complaint as true, and draws all reasonable inferences therefrom in favor of the plaintiff. Armstrong Surgical Ctr., Inc. v. Armstrong County Mem'l Hosp., 185 F.3d 154, 155 (3d Cir. 1999). A claim should not be dismissed if the factual allegations raise a right to relief "above the speculative level." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 1965 (2007). See also Phillips v. County of Allegheny, 515 F.3d 224, 232 (3d Cir. 2008) (Twombly's "plausibility" paradigm for evaluating the sufficiency of complaints is not restricted to the antitrust context but is equally applicable in context of civil rights actions and Rule 12(b)(6) review in general),cited with approval in Wilkerson v. New Media Tech. Charter School Inc., 522 F.3d 315, 321 (3d Cir. 2008) ("Today, we extend our holding in Phillips to the employment discrimination context. The plausibility paradigm announced in Twombly applies with equal force to analyzing the adequacy of claims of employment discrimination."); Sovereign Bank v. BJ's Wholesale Club, Inc., 533 F.3d 162 (3d Cir. 2008) (Twombly paradigm applies in context of breach of contract, negligence, and equitable indemnification action against merchant and against affiliate of bank that processed credit card transactions).

As explained and clarified by the United States Court of Appeals for the Third Circuit in the Phillips case:

In determining how Twombly has changed [the Rule 12(b)(6)] standard, we start with what Twombly expressly leaves intact. The Supreme Court reaffirmed that Fed.R.Civ.P. 8 "'requires only a short and plain statement of the claim showing that the pleader is entitled to relief,' in order to'give the defendant fair notice of what the... claim is and the grounds upon which it rests,' " and that this standard does not require "detailed factual allegations." Twombly, 127 S.Ct. at 1964 (quoting Conley [v. Gibson, 355 U.S. 31, 47 (1957)]. The Supreme Court also reaffirmed that, on a Rule 12(b)(6) motion, the facts alleged must be taken as true and a complaint may not be dismissed merely because it appears unlikely that the plaintiff can prove those facts or will ultimately prevail on the merits. See id. at 1964-65, 1969 n. 8. The Supreme Court did not address the point about drawing reasonable inferences in favor of the plaintiff, but we do not read its decision to undermine that principle.

... First,... [t]he Court explained that Rule 8 "requires a'showing,' rather than a blanket assertion, of entitlement to relief." Id. at 1965 n. 3. Later, the Court referred to "the threshold requirement of Rule 8(a)(2) that the'plain statement' possess enough heft to'sho[w] that the pleader is entitled to relief.' " Id. at 1966. The Court further explained that a complaint's "[f]actual allegations must be enough to raise a right to relief above the speculative level." Id. at 1965 & n. 3.

Second, the Supreme Court disavowed certain language that it had used many times before--the "no set of facts" language from Conley. See id. at 1968. It is clear that the "no set of facts" language may no longer be used as part of the Rule 12(b)(6) standard. As the Court instructed, "[t]his phrase is best forgotten as an incomplete, negative gloss on an accepted pleading standard: once a claim has been stated adequately, it may be supported by showing any set of facts consistent with the allegations in the complaint." Twombly, 127 S.Ct. at 1969. We find that these two aspects of the decision are intended to apply to the Rule 12(b)(6) standard in general....

... [T]he Twombly decision focuses our attention on the "context" of the required short, plain statement. Context matters in notice pleading. Fair notice under 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, in order to give the defendant fair notice of what the... claim is and the grounds upon which it rests." Twombly, 127 S.Ct. at 1964. Indeed..., we understand the Court to instruct that 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.... Put another way, in light of Twombly, Rule 8(a)(2) requires a "showing" rather than a blanket assertion of an entitlement to relief. We caution that ...

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