Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Miller v. North Belle Vernon Borough

January 15, 2009

CARL MILLER, PLAINTIFF,
v.
NORTH BELLE VERNON BOROUGH ET AL DEFENDANTS.



The opinion of the court was delivered by: Ambrose, Chief District Judge

OPINION and ORDER OF COURT

Carl Miller ("Miller") contends that during a regularly scheduled meeting of North Belle Vernon Borough ("the Borough") he was assaulted by the Defendants on account of and in retaliation for having engaged in protected First Amendment activity. Accordingly, he brings suit against the Borough; Edward J. Lyons, as an individual and in his capacity as the Mayor of the Borough; Dennis Simboli, as an individual and in his capacity as President of the Borough Council; and Coleen Naylor, as an individual and in her capacity as a Borough Police Officer, under 42 U.S.C. § 1983 for violations of his rights under the First and Fourteenth Amendments of the United States Constitution. Miller also asserts a claim against all Defendants for intentional infliction of emotional distress.

The Defendants have filed a Partial Motion to Dismiss Pursuant to FRCP 12(b)(6) Or In The Alternative, Motion For More Definite Statement Pursuant to FRCP 12(e).

See Docket No. [6]. The Defendants urge that the Complaint lacks the factual specificity required under the Supreme Court's decision in Bell Atlantic Corporation v. Twombly, __ U.S. __, 127 S.Ct. 1955 (2007). The Defendants also contend that the intentional infliction of emotional distress claim is fatally flawed.

After careful consideration, and for the reasons set forth below, the Motion is granted in part and denied in part.

Standard of Review

In ruling on a motion to dismiss brought pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, I must construe all allegations of the complaint in the light most favorable to the plaintiff. I must also accept as true all well-pleaded facts and allegations, and must draw all reasonable inferences therefrom in favor of the plaintiff. Worldcom, Inc. v. Graphnet, Inc., 343 F.3d 651, 653 (3d Cir. 2003). However, as the Supreme Court made clear in Bell Atlantic v. Twombly, __ U.S. __, 127 S.Ct. 1955, 1965 (2007), the "[f]actual allegations must be enough to raise a right to relief above the speculative level." Thus, "a plaintiff's obligation to provide the 'grounds' of his 'entitle[ment] to relief' requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Id. (citations omitted).

Analysis

I. First Amendment Claims

A retaliation claim under the First Amendment requires Miller to allege and prove that: (1) he engaged in constitutionally protected activity; (2) that the government responded with retaliation; and (3) that the protected activity caused the retaliation. See Eichenlaub v. Township of Indiana, 385 F.3d 274, 282 (3d Cir. 2004) (citations omitted) and Herman v. Carbon County, 248 Fed. Appx. 442, 444 (3d Cir. 2007) (citations omitted). Here, Miller contends that he was physically assaulted by Officer Naylor at a Borough Council meeting on October 10, 2006. According to Miller, the assault occurred in retaliation for his having engaged in protected First Amendment activity, including the right to free speech, political affiliation and the right to petition the government for redress of grievances. See Complaint, ¶ 1.

Yet, as the Defendants allege, the Complaint is bereft of any factual details regarding Miller's alleged "protected activity." No mention is made of about what Miller was speaking, what party or individual(s) he was affiliated with, or what grievances he sought to address. Miller's failure in this regard is fatal.*fn1

"While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff's [Rule8] obligation to provide the 'grounds' of his 'entitle[ment] to relief' requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Phillips v. County of Allegheny, 515 F.3d 224, 231 (3d Cir. 2008), citing, Bell Atlantic Corporation v. Twombly, __ U.S. __, 127 S.Ct. 1955, 1964-65 (2007).*fn2 Here, Miller has given nothing more than a formulaic recitation of the elements of the cause of action. The Complaint does not contain "enough factual matter (taken as true) to suggest" that Miller actually engaged in activity protected by the First Amendment. Phillips, 515 F.3d at 234. The Complaint, as it currently reads with respect to Miller having engaged in "protected activity,"does not raise the right to relief above the speculative level. Twombly, 127 S.Ct. at 1965 n. 3.

Accordingly, the Motion to Dismiss the claims asserted under the First and Fourteenth Amendment for retaliation is granted. See Herman v. Carbon County, 248 Fed. Appx. 442 (3d Cir. 2007) (finding that a plaintiff claiming retaliation under the First Amendment had not provided the operative facts underlying her claim where she failed to provide details regarding the content of the expressions or when the expressions occurred). Dismissal is, however, without prejudice to file an Amended Complaint curing the deficiencies noted herein.

II. Fourteenth Amendment Claims

Miller's Complaint does make two extremely limited references to the Fourteenth Amendment. See Complaint ΒΆΒΆ 1 and 13. In each instance, no mention is made of any particular portion or clause of the Fourteenth Amendment. Instead, Miller references retaliation for having engaged in ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.