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O'Fee v. City of Philadelphia

October 2, 2009


The opinion of the court was delivered by: Robert F. Kelly, Sr. J.


Presently before the Court is the Motion to Dismiss Plaintiff's Complaint in Part filed by Defendants Shawn Trush ("Trush"), Sylvester Johnson ("Johnson"), William Colarulo ("Colarulo"), Daniel Bartlett ("Bartlett") and the City of Philadelphia (the "City") (collectively "Defendants"). For the following reasons, Defendants' Motion will be granted in part and denied in part.


Plaintiff Mark O'Fee ("O'Fee") is a former police sergeant who was employed in the Northeast Detectives Division of the Philadelphia Police Department (the "Department") from November 1991 to June 2007. (Am. Compl. ¶ 6.) On June 16, 2009, O'Fee filed a Complaint in this Court against Defendants. On July 13, 2009, Defendants filed a Motion to Dismiss O'Fee's Complaint in Part, which was granted by this Court's Order dated July 27, 2009. O'Fee thereafter filed his Amended Complaint on August 10, 2009.

The Amended Complaint alleges that Trush, Johnson, Colarulo and Bartlett were policymakers and employees of the City of Philadelphia, and that they had the power to arrest, discipline and terminate employees. (Id. ¶¶ 7, 10-11.) O'Fee claims that he spoke out about a police officer who allegedly "slashed the face of a citizen"*fn1 and about Trush protecting that officer from prosecution or internal police discipline because Trush is a close friend of the officer's father. (Id. ¶¶ 20-22, 25, 51(a)-(b).) Specifically, O'Fee states that he reported police corruption, cooperated in the investigation of a corrupt police officer, testified truthfully in court about that corruption and petitioned the government for relief through grievance procedures in his collective bargaining agreement. (Id. ¶ 18.) O'Fee alleges that Trush oversees Internal Affairs Bureau ("IAB") investigations in the Department and that Trush would not allow an IAB investigation into Perez "until there was a positive identification to [Trush's] satisfaction." (Id. ¶ 26(a).) O'Fee asserts that although two positive identifications were subsequently made, Trush continued to maintain Perez's innocence without conducting an investigation. (Id. ¶ 26(b).) Thereafter, O'Fee claims that the IAB officers under Trush cleared Perez, and that Trush stated that he would "get O'Fee for this." (Id. ¶¶ 26(c), 27.) O'Fee further alleges that Trush and other investigators at IAB then refused to return the investigation file to the Northeast Detectives Division, thus preventing investigation into Perez with regard to the alleged assault. (Id. ¶ 26(d).)

After clearing Perez, O'Fee contends that Trush initiated retaliatory actions against him that led to his arrest, criminal prosecution and eventual discharge from the Department.*fn2 (Id. ¶¶ 26(e), 28-30, 42-44, 48, 51(b)-(c).) In engaging in these alleged retaliatory actions, O'Fee asserts that Trush, Johnson, Bartlett and Colarulo acted in furtherance of the City's policy, custom or practice. (Id. ¶¶ 36, 70-75, 77-82.) In or about November 2008, a jury acquitted O'Fee of the "crimes alleged by Trush and the other Defendants." (Id. ¶¶ 56, 85.) Following his acquittal, O'Fee was not reinstated as a police officer. O'Fee asserts that similarly situated police officers, however, including Trush, have been reinstated or promoted. (Id. at ¶¶ 33, 64-67.)

O'Fee's Amended Complaint consists of five Counts: Count I alleges a First Amendment retaliation claim pursuant to 42 U.S.C. § 1983 ("§ 1983") and a conspiracy claim pursuant to 42 U.S.C. § 1985 ("§ 1985"); Count II asserts a Fourth Amendment claim via the Fourteenth Amendment for unreasonable seizure and a conspiracy claim under § 1985; Count III asserts a Fourteenth Amendment claim for Equal Protection retaliation and a conspiracy claim under § 1985; Count IV alleges a § 1983 claim against the City pursuant to Monell v. Dep't of Soc. Servs., 436 U.S. 658 (1978) ("Monell claim"); and Count V alleges several state law claims, including a claim for wrongful use of civil process pursuant to 42 Pa.C.S. § 8351 et seq. ("Dragonetti Act"), a malicious prosecution claim, a claim for intentional infliction of emotional distress ("IIED") and a claim for civil conspiracy.*fn3

On August 31, 2009, Defendants filed the instant Motion, requesting that the Court dismiss the following claims pursuant to Federal Rule of Civil Procedure 12(b)(6): 1) the conspiracy claims under § 1985; 2) the Equal Protection retaliation claim; 3) the Monell claim; and 4) the state law claims.*fn4


A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) tests the sufficiency of a complaint. Kost v. Kozakiewicz, 1 F.3d 176, 183 (3d Cir. 1993). Under Rule 12(b)(6), the defendant bears the burden of demonstrating that the plaintiff has not stated a claim upon which relief can be granted. Fed. R. Civ. P. 12(b)(6); see also Hedges v. United States, 404 F.3d 744, 750 (3d Cir. 2005). In Bell Atl. Corp. v. Twombly, the Supreme Court stated that "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." 550 U.S. 544, 555 (2007).

Following Twombly, the Third Circuit has explained that the factual allegations in the complaint may not be "so undeveloped that it does not provide a defendant the type of notice which is contemplated by Rule 8." Phillips v. County of Allegheny, 515 F.3d 224, 233 (3d Cir. 2008). Moreover, "it is no longer sufficient to allege mere elements of a cause of action; instead 'a complaint must allege facts suggestive of [the proscribed] conduct.'" Id. (alteration in original) (quoting Twombly, 550 U.S. at 563 n.8). Furthermore, the complaint's "factual allegations must be enough to raise a right to relief above the speculative level." Id. at 234 (quoting Twombly, 550 U.S. at 555). "This 'does not impose a probability requirement at the pleading stage,' but instead 'simply calls for enough facts to raise a reasonable expectation that discovery will reveal evidence of the necessary element.'" Id. (quoting Twombly, 550 U.S. at 556).

Recently, in Ashcroft v. Iqbal, the Supreme Court applied the Twombly standard, stating that "[t]o survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" 129 S.Ct. 1937, 1949 (2009) (citing Twombly, 550 U.S. at 570). The Supreme Court explained that deciding whether a "complaint states a plausible claim for relief will... be a context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Id. at 1950. "While legal conclusions can provide the framework of a complaint, they must be supported by factual allegations. When there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief." Id.

Notwithstanding Twombly and Iqbal, the general rules of pleading still require only a short and plain statement of the claim showing that the pleader is entitled to relief, not detailed factual allegations. Phillips, 515 F.3d at 231. Moreover, when evaluating a motion to dismiss, the court must accept as true all well-pleaded allegations of fact in the plaintiff's complaint, and must view any reasonable inferences that may be drawn therefrom in the light most favorable to the plaintiff. Id.; Buck v. Hampton Twp. Sch. Dist., 452 F.3d 256, 260 (3d Cir. 2006). Finally, the court must "determine whether, under ...

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