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Beyer v. Borough

June 25, 2010


Hon. John E. Jones III


Before the Court in this § 1983 action is Defendants Duncannon Borough, Duane Hammaker, and Patrick Brunner's Motion to Dismiss Plaintiff Eric Beyer's ("Plaintiff" or "Beyer") Second Amended Complaint, Motion for a More Definite Statement, and Motion to Strike. (Doc. 26). For the reasons articulated in this Memorandum, the Court will grant the Motion and dismiss Plaintiff's claims. An appropriate Order shall enter.


In considering a motion to dismiss pursuant to Rule 12(b)(6), courts "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, 231 (3d Cir. 2008) (quoting Pinker v. Roche Holdings, Ltd., 292 F.3d 361, 374 n.7 (3d Cir. 2002)). In resolving a motion to dismiss pursuant to Rule 12(b)(6), a court generally should consider only the allegations in the complaint, as well as "documents that are attached to or submitted with the complaint, . . . and any matters incorporated by reference or integral to the claim, items subject to judicial notice, matters of public record, orders, [and] items appearing in the record of the case." Buck v. Hampton Twp. Sch. Dist., 452 F.3d 256, 260 (3d Cir. 2006).

A Rule 12(b)(6) motion tests the sufficiency of the complaint against the pleading requirements of Rule 8(a). Rule 8(a)(2) requires that a complaint contain a short and plain statement of the claim showing that the pleader is entitled to relief, "in order to give the defendant fair notice of what the claim is and the grounds upon which it rests. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). While a complaint attacked by a Rule 12(b)(6) motion to dismiss need not contain detailed factual allegations, it must contain "sufficient factual matter, accepted as true, to 'state claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, --- U.S. ---, ---, 129 S.Ct. 1937, 1949 (2009). To survive a motion to dismiss, a civil plaintiff must allege facts that 'raise a right to relief above the speculative level . . . ." Victaulic Co. v. Tieman, 499 F.3d 227, 235 (3d Cir. 2007) (quoting Twombly, 550 U.S. at 555). Accordingly, to satisfy the plausibility standard, the complaint must indicate that defendant's liability is more than "a sheer possibility." Iqbal, 120 S.Ct. at 1949. "Where a complaint pleads facts that are 'merely consistent with' a defendant's liability, it 'stops short of the line between possibility and plausibility of entitlement to relief.'" Id. (quoting Twombly, 550 U.S. at 557).

Under the two-pronged approach articulated in Twombly and later formalized in Iqbal, a district court must first identify all factual allegations that constitute nothing more than "legal conclusions" or "naked assertions." Twombly, 550 U.S. at 555, 557. Such allegations are "not entitled to the assumption of truth" and must be disregarded for purposes of resolving a 12(b)(6) motion to dismiss. Iqbal, 129 S.Ct. at 1950. Next, the district court must identify "the 'nub' of the . . . complaint -- the well-pleaded, nonconclusory factual allegation[s]." Id. Taking these allegations as true, the district judge must then determine whether the complaint states a plausible claim for relief. See id.

However, "a complaint may not be dismissed merely because it appears unlikely that the plaintiff can prove those facts or will ultimately prevail on the merits." Phillips, 515 F.3d at 231 (citing Twombly, 127 S.Ct. 1964-65, 1969 n.8). Rule 8 "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. at 234.


For the purposes of efficiency, we incorporate the following statement of facts from our December 15, 2009 Memorandum and Order (Doc. 20) and, in accordance with the standard of review, we view all facts and reasonable inferences therefrom in the light most favorable to Plaintiff.

Plaintiff was formerly employed by Duncannon Borough as a part-time police officer. Defendant Hammaker was the president of the Duncannon Borough Council ("the Council"). (Doc. 10 ¶ 9). Defendant Brunner is currently Chairman of the Council. (Id. ¶ 10).*fn2

Plaintiff had written and posted on the internet information critical of a decision by the Duncannon Borough Council, using the pseudonym of "big bear." (Id. ¶¶ 23-24, 34-35). On June 17, 2008, Plaintiff received a letter from Bell that indicated the Council's awareness of the postings and which asserted that the postings were not appropriate. (Id. ¶ 36). Plaintiff was given twenty-four (24) hours to respond, and, when he did, he informed the Council he would seek legal advice and declined to answer questions about the internet postings. (Id. ¶¶ 38-40). With the advice of counsel, Beyer responded to the Council that he had used the internet pseudonym, but denied having made "inappropriate postings." (Id. ¶ 41). On July 1, 2008, Bell again wrote to Plaintiff and requested that plaintiff appear before the committee for a fact-finding interview on July 8, 2008. (Id. ¶ 42). Plaintiff did not appear at the interview because of his full-time employment. (Id. ¶ 42-43). On July 16, 2008, Bell sent a letter to Beyer, signed by Hammaker, that informed Beyer that the Council voted to terminate his employment with the Police Department. (Id. ¶ 44). A grievance was filed, reviewed by Brunner, and denied. (Id. ¶ 44a-44b).

In the December 15, 2009 Memorandum and Order, we found that, construing the Amended Complaint as favorably as possible, Plaintiff did potentially engage in protected activity when he criticized the Borough. We further found that Plaintiff sufficiently pleaded that he suffered an adverse employment action. Nonetheless, we found that the Amended Complaint was patently deficient in asserting a First Amendment retaliation claim because Plaintiff failed to allege facts beyond obvious temporal proximity that would suggest that the Defendants' motivation in terminating Plaintiff's employment was, in fact, his protected activity. Even though Plaintiff failed to state a First Amendment claim, and cognizant of the leniency typically granted to civil rights' plaintiffs, we granted Plaintiff leave to amend this claim with respect to the remaining Defendants in the event he could assert such a claim if pleaded properly. Not only did we grant Plaintiff leave to amend his First Amendment and wrongful discharge claims, we also provided him with guidance as to what information would be useful to assert a cognizable claim because, as they stood, those claims were susceptible to dismissal. Thus, we instructed Plaintiff as follows:

First, Plaintiff has provided very little information regarding the content of Beyer's postings on the internet. While we are aware Plaintiff used a pseudonym, whether he identified himself as a police officer is important to note. A record of the internet postings or more specific detail regarding the content is necessary to illustrate whether Plaintiff was actually engaged in protected activity. It may also help shed light on the causal connection between the activity and the retaliation that Plaintiff alleges. Further, we strongly advise that Plaintiff include, if possible, more facts to support his allegation that there was a causal connection, beyond the temporal connection as noted, between the protected activity and his termination. Additionally, the actual content, or description thereof, of the letters Plaintiff received from the Borough Council may be useful for these purposes. Also, some limited investigation into the claims could likely easily provide the Borough Council's session minutes, which may shed some light on to Plaintiff's allegations. . . . (Doc. 20 pp. 8-9). Finally, we dismissed Plaintiff's Fourteenth Amendment procedural due process claim with prejudice because we found that amendment of that claim would be futile.

Instead of filing an amended complaint as directed, Plaintiff filed a Motion for Reconsideration of the Court's December 15, 2009 Memorandum and Order on December 29, 2009. (Doc. 21). We denied that Motion, noting "a motion for reconsideration is not the vehicle to repeat the same arguments [] raised in opposing the prior Motion to Dismiss" and that Plaintiff presented no ...

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