The opinion of the court was delivered by: Stengel, J.
Becerril has brought this § 1983 case, alleging violations of his first and fourth amendment rights. On September 3, 2008, he filed an amended complaint that includes three counts against defendants city of Allentown, and police officers Mancini and Karnish.
Defendants have filed a second motion to dismiss*fn1 arguing that (1) Count III of Becerril's amended complaint fails to state a claim against Allentown and (2) (if Count III is not dismissed) the "official capacity" claims against Mancini and Karnish should be dismissed as redundant of Becerril's claims against Allentown.
Based on the following discussion, I will grant the motion with respect to Count III's municipal claim against the City of Allentown.
On March 1, 2006, Becerril was talking on his cell phone near the intersection of Fifth and Turner Streets in Allentown. Officer Mancini stopped Becerril, searched him, and released him. Officer Mancini later observed Mr. Becerril enter a residential building at 212 N. Sixth Street after a building resident gave Mr. Becerril permission to enter. A building maintenance employee then let Officers Mancini and Karnish into the building through the front door. Inside, the officers confronted Mr. Becerril and arrested him for trespassing. They searched him (incident to his arrest) and allegedly discovered a metal spoon and a glass pipe.*fn3
Becerril's suit for alleged violations of 42 U.S.C. § 1983 consists of three counts. Counts I and II of the amended complaint assert causes of action under the first and fourth amendments against Mancini and Karnish, individually and in their official capacities. Count III asserts a claim of municipal liability against Allentown. Defendants have moved to dismiss (again) plaintiff's claim against Allentown for failure to allege a predicate policy, custom or practice under Monell v. New York City Dep't of Social Servs., 436 U.S. 658 (1978), and his claims against Mancini and Karnish in their official capacities as redundant of the claims against Allentown. Defendants have not challenged plaintiff's claims against Mancini and Karnish in their individual capacities.
II. STANDARD FOR A MOTION TO DISMISS
Under Rule 12(b)(6), a defendant may move to dismiss a complaint for "failure to state a claim upon which relief can be granted." The rule is designed to screen out cases in which the "complaint states a claim based upon a wrong for which there is clearly no remedy, or a claim which the plaintiff is without right or power to assert and for which no relief could possibly be granted." Port Auth. v. Arcadian Corp., 189 F.3d 305, 311-12 (3d Cir. 1999). A complaint should not be dismissed on a 12(b)(6) motion if the claim is adequately stated and if the factual allegations raise a right to relief "above the speculative level." Bell Atlantic Corp. V. Twombly, 127 S.Ct. 1955, 1965 (2007). "A well-pleaded complaint may proceed even if it appears that a recovery is very remote and unlikely." Id. (citing Scheuer v. Rhodes, 416 U.S. 232, 236 (1974)) (internal quotations omitted). However, "stating . . . a claim requires a complaint with enough factual matter (taken as true) to suggest the required element." Id.
When considering a motion to dismiss, courts must construe the complaint liberally, accept all factual allegations in the complaint as true, and draw all reasonable inferences in favor of the plaintiff. Phillips v. County of Allegheny, 515 F.3d 224, 231 (3d Cir. 2008); Nami v. Fauver, 82 F.3d 63, 65 (3d Cir. 1996). Courts look only to the facts alleged in the complaint and not to matters extraneous to the pleadings in deciding a motion to dismiss. Jordan v. Fox, Rothschild, O'Brien & Frankel, 20 F.3d 1250, 1261 (3d Cir. 1994); In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1426 (3d Cir. 1997). Under Fed. R. Civ. P. 8(a)(2), the complaint must contain "a short and plain statement of the claim showing that the pleader is entitled to relief." The statement must provide to 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); see also D.P. Enters. v. Bucks County Cmty. Coll., 725 F.2d 943, 944 (3d Cir. 1984).
Establishing that no possible claim has been presented is the defendants' burden at this stage. Ransom v. Marrazzo, 848 F.2d 398, 401 (3d Cir. 1988). Courts, however, will not accept as true "bald assertions" or "vague and conclusory allegations." See Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 906 (3d Cir. 1997); Sterling v. Southeastern Pa. Transp. Auth., 897 F. Supp. 893 (E.D. Pa. 1995).
A. City of Allentown: Monell Claim
Defendants argue that plaintiff's claim against Allentown must be dismissed under Monell. See 436 U.S. at 694. A municipality can only be liable under § 1983 if the alleged injury is permitted under a specific policy or custom. Id. To state a § 1983 claim against a municipality, plaintiff must: (1) identify a policy or custom that deprived him of a federally protected right, (2) demonstrate that the municipality, by its deliberate conduct, acted as the "moving force" behind the alleged deprivation, and (3) establish a direct causal link between the policy or custom and the plaintiff's injury. Bd. of County Comm'rs v. Brown, 520 U.S. 397, 404 (1997). This threshold to municipal liability may be proved with evidence of knowledge and acquiescence by the relevant municipal entity. See Beck v. City of Pittsburgh, 89 F.3d 966, 971 (3d Cir. 1996). Another avenue of proof is to ...