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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 intervening change in the controlling law, new evidence, or clear error of law or fact. (Doc. 24 p. 6).

Plaintiff then filed the Second Amended Complaint on February 19, 2010.

(Doc. 25). In his Second Amended Complaint (Doc. 25), Plaintiff deleted the allegations regarding Gerald Bell and added allegations as follows:

¶ 1: Plaintiff notes the Court's December 15, 2009 opinion and his disagreement with that opinion and asserts that "[c]onsequently, plaintiff has merely added allegations as to defendants 'reasons' for firing plaintiff.";

¶ 38: "This request [apparently asking if Plaintiff was "Big Bear" via letter] by Bell on behalf of Borough Council demonstrates the defendants' intent to injure plaintiff based on defendants' belief that plaintiff was responsible for critical Internet postings.";

¶ 39: "This letter was sent to plaintiff less than a month (one month less a day before he was discharged).";

¶ 41: "The aforementioned letter demonstrates, in both syntax and tone, a desire to retaliate or otherwise act against the plaintiff (certainly not to thank him or reward him) for Internet postings . . . i.e. "Are you Big Bear" where whoever made the comments engaged in protected speech.";

¶ 45: "Plaintiff's response [declining to answer without legal advice] indicated the obvious concern about defendants' stated in tent to connect him to the Internet postings though defendants' stated belief that plaintiff used the pseudonym "big bear" or "Big Bear.:";

¶ 46: Plaintiff adds that "[h]e admits herein that he criticized Council.";

¶ 47: When referring to the scheduling of the fact-finding interview,

Plaintiff again mentions that he could not make this meeting, and he added to the Second Amended Complaint that he "believes Council was fully aware of this fact.";

¶ 48: "It was obvious to plaintiff and his counsel and to everyone else aware of the above information that the "fact finding" meeting requested by Council was to elicit responses from plaintiff so that defendants could do what they intended to (and in fact did) i.e. dismiss the plaintiff for engaging in protected speech.";

¶ 49: Plaintiff adds that he "suffered further retaliation";

¶ 52: Plaintiff deletes "in violation of grievant Eric Beyers[sic] 14th Amendment due process rights" and adds "right to petition for redress.";

¶ 54: "The actions of the defendants constituted unlawful violations of plaintiff's 1st Amendment rights i.e. his rights to petition for redress and his rights to expressive freedom."

Defendants' Motion to Dismiss followed on March 9, 2010. (Doc. 26). The Motion has been fully briefed by the parties and thus is ripe for disposition. (Docs. 28, 30, 32).


A. Defendants' Arguments in Support of the Motion

Defendants assert that Plaintiff's claims fail as a matter of law. Defendants cite extensively to Plaintiff's Second Amended Complaint and assert that each added or amended allegation amounts only to "either a repeated or new plea for relief or a subjective statement of belief." (Doc. 28 p. 7). Defendants claim that "[n]one of the added language contains any additional factual averments responsive to the Court's [] Order or supportive of the newly minted First Amendment claims (petition for redress and 'expressive freedom')." (Doc. 28 p. 8). Defendants highlight that the Second Amended Complaint contains no new detail regarding the internet postings, in form or content, and defendants aver that Plaintiff fails to plead any supporting facts to demonstrate that the postings or his response to the Committee's inquiry was protected activity. Defendants further maintain that, even if Plaintiff engaged in protected activity, Plaintiff fails to plead facts sufficient to demonstrate that his termination was in retaliation for the protected activity rather than "a proper exercise by his employer of its personnel management rights upon Beyer's failure to appear before it as directed." (Doc. 28 p. 9). Regarding Plaintiff's "expressive freedom" claim, Defendants note that Plaintiff identifies neither the nature of or the basis for such a claim. Defendants also argue that Plaintiff's "petitioning" claim must fail because Plaintiff patently fails to plead that Defendants denied him the right to petition or that Defendants retaliated against him for exercising that right. Finally, Defendants note that Plaintiff again fails to allege elements necessary to support a wrongful discharge claim under Pennsylvania law.

B. Plaintiff's Arguments in Opposition to the Motion

Plaintiff's Brief in Opposition is embarrassingly bereft of sound legal argument and authority. With respect to his First Amendment claim, instead of attempting to counter any Defendants' arguments with specificity, Plaintiff asserts that he "is at a loss to understand how federal pleading standards are not met . . . The Motion for Reconsideration set forth particulars under which neither Defendants' nor the Courts' [sic] view of federal notice pleading standards can be met" and, therefore, "Plaintiff respectfully asserts all of his prior arguments. . . ."(Doc. 30 pp. 10-11). With respect to the "petitioning" claim, Plaintiff maintains that because Plaintiff was president of the Duncannon Police Association, had engaged the services of an attorney to seek guidance during the disciplinary process, and then filed a grievance, "Defendants conduct was n [sic] retaliation for, intended to chill, his First Amendment Right to petition his government . . ." (Doc. 30 p. 12). Plaintiff is apparently arguing that he was denied his right to petition prior to engaging in any legal process, and fails to cite to any legal precedent for this argument. Finally, with respect to his wrongful discharge claim, Plaintiff asserts the following, puzzling argument:

Plaintiff additionally asserts a state law wrongful discharge claim. While the Supreme Court of Pennsylvania has not recognized a tort laws cause of action under the precise contours of that alleged here, there can be no doubt that if jury service is protected and things of that nature, the First Amendment right to openly express oneself on matters of public concern, and to engage in petitioning activities should clearly be elevated to the status of constituting a public policy exception to the employment at-will doctrine. . . . Plaintiff's Second Amended Complaint states such a claim . . . (Doc. 30 p. 12).*fn3 We presume Plaintiff is arguing that this federal Court should create a new cause of action under Pennsylvania law.

C. Identifying the Well-Pleaded, Nonconclusory Allegations

Applying the two-pronged approach mandated by Twombly and Iqbal, we must first identify all allegations that constitute nothing more than "naked assertions" or "legal conclusions."*fn4 Construing the Second Amended Complaint in the light most favorable to Plaintiff, we will accept and consider his allegations regarding the internet postings and comments he made that were critical to the Duncannon Borough Council. (See, e.g. Doc. 25 ¶¶ 24-25, 31, 35-36). Further, we accept Plaintiff's allegations regarding the Duncannon Borough Council contacting him via letter, scheduling a fact-finding interview, and eventually terminating Plaintiff's employment, and Plaintiff's reaction to those events (retaining counsel, being absent from the interview, and subsequently filing a grievance). (See, e.g., Doc. 25 ¶¶ 37, 39, 43-44, 46-49, 50 (in part, while disregarding the bare legal assertions contained therein), 51).

Although the Second Amended Complaint contains some well-pleaded allegations, it is nonetheless rife with impertinent information, naked assertions, and conclusory statements. In fact, we find that each allegation that Plaintiff added to the Second Amended Complaint (detailed above, Section II) is either an empty suspicion of Defendants' particular state of mind or a bald assertion of entitlement to relief devoid of factual allegations to support that entitlement. For example, although Plaintiff asserts that the letter he received "demonstrates the defendants' intent to injure plaintiff based on defendants' belief that plaintiff was responsible for critical Internet postings" (Doc. 25 ¶ 38), he pleads no facts that can support the inference as to Defendants' intent. Therefore, we will disregard the irrelevant and conclusory allegations when evaluating whether Plaintiff can state a claim upon which relief could be granted.

C. First Amendment Retaliation Claim*fn5

To prevail on a First Amendment retaliation claim, a plaintiff must make three showings: (1) the plaintiff engaged in protected activity, such as engaging in public speech,*fn6 (2) the defendants responded with "retaliation," (an adverse employment action), see Anderson v. Davila, 125 F.3d 148, 161 (3d Cir. 1997) and (3) the protected activity was a substantial or motivating factor of the alleged retaliation. Rauser v. Horn, 241 F.3d 330, 333 (3d Cir. 2001).In addition to speaking on a matter of public concern, to recover the speaker must show he was speaking as a private citizen, and not pursuant to his official duties. Garcetti v. Ceballos, 547 U.S. 410 (2006).*fn7 If a plaintiff can meet these threshold criteria, the burden then shifts to the defendant to demonstrate, by a preponderance of the evidence, that the action would have been taken in the absence of the protected activity. Id.

Pursuant to the second step of the Twombly and Iqbal analysis, we consider all of the well-pleaded allegations as true and evaluate whether Plaintiff has properly asserted his entitlement to relief. We find that Plaintiff has not stated a cognizable First Amendment retaliation claim. We further find that Plaintiff has satisfied the low standard required to survive a motion to dismiss with respect to the first two elements of a retaliation claim: that he engaged in expressive activity (internet posting) and that he suffered an adverse employment action. Nonetheless, Plaintiff again fails to plead sufficient allegations to support an inference of a causal connection between the activity and the employment action and, despite clear guidance from the Court, Plaintiff provides no "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).*fn8 Because Plaintiff only alleges empty conclusions as to Defendants' intentions without pleading any facts that could possibly support an inference of a causal connection, Plaintiff fails to demonstrate that Defendants' liability is more than a "sheer possibility" and thus fails to satisfy the plausibility standard. See Iqbal, 120 S.Ct. at 1949.

D. First Amendment "Petitioning" Claim*fn9

The Petition Clause of the First Amendment to the United States Constitution provides that "Congress shall make no law . abridging . the right of the people peaceably to assemble, and to petition the government for a redress of grievances." U.S. CONST. amend. I, cl. 6.*fn10 In San Filippo v. Bongiovanni, 30 F.3d 424 (3d Cir. 1994), the Third Circuit held that a "public employee who has petitioned the government through a formal mechanism such as the filing of a lawsuit or grievance is protected under the Petition Clause from retaliation . . . even if the petition concerns a matter of solely private concern." Foraker v. Caffinich, 501 F.3d 231, 236 (3d Cir. 2007). "Formal petitions are defined by their invocation of a formal mechanism of redress" and include "lawsuits, grievances, and workers compensation claims." Id. A petition need not be formal to be protected under the Petition Clause; but, "[p]etitions made through informal channels may occasion a lesser degree of constitutional protection than their formal counterparts. Id. at 237 (citing San Filippo, 30 F.3d at 439).

Courts apply the same three-part test, articulated above, when evaluating governmental retaliation claims. See Eichenlaub v. Twp. of Indiana, 385 F.3d 274 (3d Cir. 1994). To repeat, Plaintiff must prove (1) that he engaged in constitutionally-protected activity; (2) that the government responded with retaliation; and (3) that the protected activity caused the retaliation. Anderson v. Davila, F.3d 148, 161 (3d Cir. 1997). Accepting the above-identified well-pleaded allegations as true, and thus accepting that Plaintiff can satisfy the first two elements, we nonetheless find that Plaintiff has stated a claim for retaliation under the Petition Clause. Although Plaintiff asserts that "the matter . . . involved petitioning activity . . . once the Defendants forced him to defend himself" (Doc. 30 p. 11), Plaintiff points to no formal mechanism by which he actually petitioned the government prior to the alleged "retaliation." We do not accept that Plaintiff's retention of counsel for the fact-finding meeting that was initiated by Defendants or that Plaintiff's subsequent failure to respond or attend that meeting amounts to an exercise of Plaintiff's right to petition the government. Further, we note that Plaintiff filed a grievance after his termination. Because his prior termination is clearly not causally connected to his initiation of a formal petitioning mechanism, and because Plaintiff fails to allege any "retaliation" that could be causally connected to his petition (grievance), Plaintiff fails to identify any basis upon which he may be entitled to relief.

E. Wrongful Discharge Claim

Because we are dismissing all of Plaintiff's federal claims, we will not retain supplemental jurisdiction over Plaintiff's Pennsylvania law claims and thus will dismiss them without prejudice.


Despite being granted another opportunity to amend the Complaint assert cognizable claims, Plaintiff has again failed to sufficiently state any claim under which he may be entitled to relief. Although we are cognizant of the leniency typically granted to civil-rights plaintiffs, we have already extended that leniency to Plaintiff. Ass the Third Circuit has recently noted, "allowing [Plaintiff] a fourth bite at the apple would be futile." Mann v. Brenner, et al., 2010 U.S. App. LEXIS 6540, *19-20 n. 9 (3d Cir. March 31, 2010) (non-precedential opinion). As such, we will grant Defendants' Motion to Dismiss (Doc. 26) and dismiss Plaintiff's Second Amended Complaint. (Doc. 25). An appropriate Order shall enter.

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