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Sawl v. Borough of West Kittanning

April 9, 2010

ANTHONY SAWL, PLAINTIFF,
v.
THE BOROUGH OF WEST KITTANNING; CLIFFORD J. NEAL, KENNETH D. TRUDGEN, ROBERT VENESKY, JIM SOBISKI, NANCY CAPONE, BERNIE BOWSER, SR., BERNIE BOWSER, JR., AND JEANNE ENGLERT, INDIVIDUALLY AND IN THEIR OFFICIAL CAPACITIES, DEFENDANTS,



The opinion of the court was delivered by: Judge Nora Barry Fischer

MEMORANDUM OPINION

I. Introduction

This is a civil rights action initiated by Anthony Sawl ("Plaintiff") against the Borough of West Kittanning ("Borough"), Bernie Bowser, Jr ("Bowser, Jr."), Bernie Bowser, Sr. ("Bowser, Sr."), Nancy Capone ("Capone"), Jeanne Englert ("Englert"), Clifford Neal ("Neal"), Jim Sobiski ("Sobiski"), Kenneth Trudgen ("Trudgen") and Robert Venesky ("Venesky," collectively "Defendants"), all of whom are members of the West Kitanning Borough Council. (Docket No. 1-1 ¶¶ 5-14). Plaintiff has brought this case pursuant to 42 U.S.C. §§ 1983, 1986 and 1988. (Id. at ¶ 2). Plaintiff claims that his rights under the Fourth and Fourteenth Amendments were violated when Defendants terminated Plaintiff, without notice or an opportunity to be heard, from his position as Lieutenant and Officer in Charge of the West Kittanning Police Department, a position in which Plaintiff claims he had a constitutionally protected property interest. (Id. at ¶¶ 23-35). This matter comes before the Court on Defendants' Motion to Dismiss (Docket No. 5) Plaintiff's Complaint. For the reasons outlined herein, Defendants' motion is granted, in part, and denied, in part.

II. Factual Allegations

In reviewing a motion to dismiss under Rule 12(b)(6), this Court must accept all factual allegations as true and draw all inferences from those facts in the light most favorable to the plaintiff. Phillips v. County of Allegheny, 515 F.3d 224, 228 (3d. Cir. 2008)(citing Worldcom, Inc. v. Graphnet, Inc., 343 F.3d 651, 653 (3d. Cir. 2003)(see Section IV). The Plaintiff makes the following allegations in his Complaint. (Docket No. 1-1).

Plaintiff is a forty-three year old man who has approximately twenty-five years of law enforcement experience. (Docket No. 1-1 at ¶ 16). Plaintiff was hired as a patrol officer for the West Kittanning Police Department in October 2005, and was promoted to Lieutenant in January 2007. (Id. at ¶ 18). Plaintiff held the position of Lieutenant and Officer in Charge of the West Kittanning Police Department at all times relevant to this lawsuit. (Id. at ¶ 17). The West Kittanning Police Department employs fewer than three full-time officers. (Id. at ¶ 19).

Plaintiff claims that on or around September 29, 2007, Defendant Neal was involved in an incident at an event held at a local fire hall where the organizers had obtained a permit to serve alcoholic beverages. (Id. at ¶ 53). According to the police reports filed by Plaintiff and his subordinate patrol officer (Officer Andryka), which were attached to Plaintiff's Complaint (Docket No. 1-1 at 12-22), attendees of this fire hall party were consuming alcohol behind the bar, a liquor code violation. (Id. at 14-15). When the officers approached the individuals drinking behind the bar, Defendant Neal "hindered" the officers' investigation repeatedly and stated in a threatening tone that he would "get to the bottom of this and.find out who complained and...take this up at a council meeting." (Id. at 13). In addition to describing Defendant Neal's "acts of official oppression" and interference with a police investigation, the incident reports also record Neal's harassment of another attendee of the party, disorderly conduct, and public intoxication. (Id. ¶¶ 52-54). Subsequent to this incident, Plaintiff filed criminal harassment charges against Defendants Trudgen, Neal, and Venesky. (Id. at ¶ 55).

Two days after criminal citations were filed against the Defendant council members, Defendants called a special council meeting in which Plaintiff was terminated from his position with the Police Department. (Id. at ¶¶ 24-25, 58). Plaintiff claims that "Defendants Trudgen, Neal, Venesky, Capone, Bowser Sr., and Sobiski comprised the majority who voted to terminate Plaintiff." (Id. at ¶ 42). Defendants did not notify Plaintiff of this special meeting, nor was he given a warning that his job was in jeopardy or a reason why he was terminated. (Id. at ¶¶ 27-28, 31). Prior to his termination, Plaintiff had never been subject to any discipline stemming from his performance as Lieutenant and Officer in Charge. (Id. at ¶ 28). Plaintiff was not given a hearing before or after his termination, and Defendants did not provide Plaintiff with a statement of the charges against him. (Id. at ¶ 38-39). Plaintiff claims that he was terminated by Defendants "because he was involved in various investigations involving council members which resulted in criminal citations being issued." (Id. at ¶ 57).

Plaintiff's Complaint contains three counts. In Count I, Plaintiff seeks to hold Defendant Borough liable under § 1983 for failing to provide notice and a hearing to Plaintiff, prior to or following his termination, in violation of his procedural due process rights. (Id. at ¶¶ 23-35). In Count II, Plaintiff seeks to hold the individual Defendants, in their official and individual capacities, liable for conspiring to violate Plaintiff's procedural due process rights. (Id. at ¶¶ 36-46). Finally, in Count III, Plaintiff seeks to hold Defendant Borough liable for violating his rights arising under the Pennsylvania Whistleblower Law. (Id. at ¶¶ 47-59).

III. Procedural History

Plaintiff originally filed his Complaint in the Allegheny County Court of Common Pleas on December 29, 2009. (Docket No. 1-1 at 2-11). Defendants filed a Notice of Removal on January 5, 2010, removing this action to this Court. (Docket No. 1). After Defendants' Motion for Extension of Time to File an Answer or Response was granted (Docket Nos. 3 and 4), Defendants filed a Motion to Dismiss Pursuant to Federal Rule of Civil Procedure 12(b)(6) along with a Brief in Support on February 8, 2010. (Docket Nos. 5 and 6). Plaintiff filed his Brief in Opposition to the Motion to Dismiss on March 1, 2010, and Defendants subsequently filed a Reply Brief on March 10, 2010. (Docket Nos. 9 and 10).

IV. Standard of Review

To 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.'" Ashcroft v. Iqbal, 129 S.Ct. 1937,1949 (2009)(citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2008)); see also Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d Cir. 2009); and FED. R. CIV. P. 8(a)(2)(a valid complaint requires only "a short and plain statement of the claim" showing entitlement to relief."). The Supreme Court in Iqbal clarified that the decision in Twombly "expounded the pleading standard for 'all civil actions.'" Iqbal, 129 S.Ct. at 1953; Fowler, 578 F.3d at 210-11. The Court further explained that although a court must accept as true all of the factual allegations contained in a complaint, that requirement does not apply to legal conclusions; therefore, the pleadings must include factual allegations to support the legal claims asserted. Iqbal, 129 S.Ct. at 1949, 1953. "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Id. at 1949 (citing Twombly, 550 U.S. at 555); see also Fowler, 578 F.3d at 210; and Phillips, 515 F.3d at 232. The determination of whether a complainant has sufficiently pled a claim "is a context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Iqbal, 129 S.Ct. at 1950 (citing Twombly, 550 U.S. at 556); see also Fowler, 578 F.3d at 210-11 (holding that in light of Iqbal, a district court should first separate the factual and legal elements of a claim and then, accepting the "well-pleaded facts as true," "determine whether the facts" pled are sufficient to show a "'plausible claim for relief.'"). Ultimately, to survive a motion to dismiss, a plaintiff must plead "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).

V. Discussion

Defendants argue that Count I of Plaintiff's Complaint should be dismissed as Plaintiff does not have a property interest in his position as a police officer for Defendant Borough because the Police Tenure Act (53 P.S. §§ 811, et seq.) and Pennsylvania Borough Code (53 P.S. §§ 46171, et seq.) do not apply to him. (Docket No. 6 at 3-5). Defendants maintain that as Plaintiff did not have a constitutionally protected property interest in his position, he was not entitled to any notice or a hearing prior to or following his termination. (Id. at 4). Next, Defendants contend that Plaintiff's conspiracy claims against the individual Defendants in Count II are insufficient because Plaintiff fails to make factual allegations sufficient to state a claim and because the intra-corporate conspiracy doctrine applies. (Id. at 5-6).Defendants further argue that Plaintiff's official capacity claims against the individual Defendants are redundant and should be dismissed. (Id. at 9-10). Finally, Defendants assert that Plaintiff's claim under ...


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