The opinion of the court was delivered by: Jones II, J.
This matter arises out of an incident that occurred during a disruptive protest on the campus of Kutztown University on April 18, 2007, when Corporal Steve Armbruster ("Plaintiff" or "Armbruster") disagreed with orders given by his superiors, questioned and declined to follow them, and was subsequently relieved of duty and subjected to discipline. Armbruster has brought suit against (1) the Chancellor of the Pennsylvania State System of Higher Education John C. Cavanaugh ("Cavanaugh"); (2) Kutztown University President F. Javier Cevallos ("Cevallos"); and (3) Chief of Police of Kutztown University William F. Mioskie ("Mioskie"). Armbruster alleges two causes of action against each defendant pursuant to 42 U.S.C. § 1983. The first cause of action alleges retaliation for exercising the right to free speech under the First Amendment. The second cause of action alleges violation of a purported "right to refuse to violate others' constitutional rights." Armbruster requests declaratory relief, injunctive relief, and damages.
This lawsuit was filed on March 6, 2009. A Motion to Dismiss was filed on May 21, 2009. This Court allowed Plaintiff to file an Amended Complaint on July 6, 2009. Defendants filed a Motion to Dismiss the Amended Complaint on July 16, 2009 (Docket No. 7). The Court held oral argument on the Motion to Dismiss on October 5, 2009. Presently before the Court is the Motion to Dismiss and Plaintiff's Response thereto. The Court has carefully considered the written and oral arguments advanced by counsel. The Court will grant the Motion to Dismiss.
In deciding a motion to dismiss pursuant to Rule 12(b)(6), courts must "accept all factual allegations as true, construe the complaint in the light most favorable to the plaintiff, and determine whether, under any reasonable reading of the complaint, the plaintiff may be entitled to relief." Phillips v. County of Allegheny, 515 F.3d 224, 233 (3d Cir. 2008) (internal quotation and citation omitted). After the Supreme Court's decision in Bell Atl. Corp. v. Twombly, "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Ashcroft v. Iqbal, - U.S. -, 129 S.Ct. 1937, 1949 (2009) (citing Twombly, 550 U.S. 544, 555 (2007)). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, 129 S.Ct. at 1949 (citing Twombly, 550 U.S. at 556). This standard, which applies to all civil cases, "asks for more than a sheer possibility that a defendant has acted unlawfully." Id. See also Fowler v. UPMC Shadyside, 578 F.3d 203, 210-211 (3d Cir. 2009) ("All civil complaints must contain more than an unadorned, the-defendant-unlawfully-harmed-me accusation.") (internal quotation omitted).
Where a plaintiff has already filed an amended complaint in an attempt to cure the failures in his initial complaint, the Court may determine that additional amendment would be inequitable or futile, and dismiss the complaint with prejudice. Phillips, 515 F.3d at 236.
Plaintiff has been a police officer with the Kutztown University Police Department for 17 years. Compl. ¶ 11. On April 18, 2007, approximately fifteen individuals associated with a group known as "Repent America" demonstrated at an outdoor location on the Kutztown University campus. Id. at ¶ 12. During the demonstration, approximately 300 counter-demonstrators (representing several different organizations and clubs), also assembled. Id. at ¶ 13. The counter-demonstration became loud, and the Repent America group was asked by Armbruster and another officer to move away from certain buildings, at which time Repent America began to do so. Id. at ¶ 14. Various students became upset and contacted university personnel about the content of Repent America's message. Id. at ¶ 15.
Other police officers and Chief Mioskie responded to the scene, along with University President Cevallos. Id. at ¶ 16. Cevallos asked Armbruster to "push" Repent America off campus. Id. at ¶ 17.*fn1 Armbruster did not reply to President Cevallos's request. Id. at ¶ 19. President Cevallos then approached Mioskie with the same request. Id. Mioskie determined that the situation was disorderly because the counter-demonstrators had become upset with Repent America's demonstration. Id. at ¶ 20. Mioskie began telling the leader of Repent America that the members of that group had to leave campus. Id. at ¶ 21.
Mioskie then ordered Armbruster to "push" Repent America off campus. Id. at ¶ 22. Armbruster objected to the chief's order, opining that it violated the group's civil rights. Id. at ¶ 23. Armbruster believed that in following Mioskie's order, he would be asked to threaten Repent America members with arrest under a "disorderly conduct statute." Id. at ¶ 24. Armbruster further believed that Mioskie's order to disperse Repent America was "wrong." Id. at ¶ 25. Armbruster also feared that limiting Repent America's ability to demonstrate would "subject him to liability." Id.*fn2 After Armbruster spoke his objections, Mioskie relieved Armbruster of the duties he was performing and told Armbruster to leave the scene to which he had been previously called to duty. Id. at ¶ 28.
Cevallos has oversight of the Kutztown Police Department disciplinary process, and Mioskie directs that process. Id. at ¶ 39. On April 20, 2007, Armbruster was notified that he was placed on paid administrative leave for his conduct at the demonstration and was asked not to report for duty or to be on campus for three shifts prior to a Pre-Discipline Conference scheduled for April 23, 2007. Id. at ¶ 31. Armbruster believed that Mioskie and Cevallos together determined that Armbruster should be placed on leave and that a Pre-Discipline Conference should be conducted because of Armbruster's behavior while on duty at the demonstration. Id. at ¶ 32. Following the Pre-Discipline Conference, Armbruster was given official notice of suspension without pay for five working days for failure to carry out a direct order to remove persons who were ordered to disperse due to disorderly actions. Id. at ¶ 33. As a result of the suspension, Armbruster lost approximately $600.00 in wages. Id. at ¶ 34. In addition, a disciplinary letter was placed on file that Armbruster believes may prevent his promotion to Sergeant. Id. at ¶ 35. Armbruster has also been warned that should he refuse to obey such an order in the future, he would risk termination. Id. at ¶ 36.*fn3 Armbruster has subsequently only received "menial" assignments and "more significant" assignments have been given to officers of lower seniority. Id. at ¶ 41.*fn4 Armbruster has been denied training and received a low performance evaluation. Id.*fn5 Armbruster has asked for some of the punishment to be rescinded. Id. at ¶ 42. Armbruster's request has not been granted. Id. at ¶ 43.
A. First Amendment Retaliation Claim
To state a First Amendment retaliation claim, a plaintiff must allege two things: (1) that the activity in question is protected by the First Amendment, and (2) that the protected activity was a substantial factor in the alleged retaliatory action. Hill v. Borough of Kutztown, 455 F.3d 225, 241 ...