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Oravitz v. Borough

August 4, 2010

CAROLYN ORAVITZ, PLAINTIFF
v.
SAXONBURG BOROUGH, DEFENDANT



The opinion of the court was delivered by: Amy Reynolds Hay Chief United States Magistrate Judge

Chief U.S. District Judge Gary L. Lancaster/Chief U.S. Magistrate Judge Amy Reynolds Hay

REPORT AND RECOMMENDATION

I. Recommendation

In December 2009, Carolyn Oravitz ("Oravitz" or "the Plaintiff"), an Allegheny County resident, filed suit against a single Defendant, Saxonburg Borough ("the Borough"), in the Court of Common Pleas of Allegheny County, Pennsylvania. There, she alleged that she had been subjected to repeated sexual harassment by a police officer who, at the time of the alleged harassment, was employed by the Borough. In the single count Complaint, the Plaintiff claimed that the Borough deprived her of "rights secured under Section 5(i)1 of the Pennsylvania Human Relations Act ("PHRA"), 43 Pa. Cons. Stat. Ann. §§ 951-963, "and other laws" when it failed to take steps necessary to end the harassment. (ECF No.1 at 15). She also alleged that the Borough's failure to act deprived her of "rights, privileges and immunities secured by the Constitution." (Id.) Because the Complaint purported to raise a federal constitutional claim, the Borough removed the matter to this Court, and filed a Motion to Dismiss pursuant to Fed. R. Civ. P 12(b)(6). (ECF No.2). Oravitz then filed an Amended Complaint (ECF No.6) in which she named the Borough, present and past Borough officials, and former Borough police officer, Erik Bergstrom ("Bergstrom"). The Defendants' Motions to Dismiss the Amended Complaint for failure to state a claim (ECF Nos. 10, 22) are pending. It is respectfully recommended that these Motions be granted.

II. REPORT

A. Standard of Review

In ruling on a Motion to Dismiss made pursuant to Fed. R. Civ. P. 12(b)(6), the Court must accept the allegations in the complaint as true and view reasonable inferences in the light most favorable to the plaintiff. See Erickson v. Pardus, 551 U.S. 89, 94 (2007). A complaint does not satisfy the requirements of Rule 12(b)(6) if it fails to allege "enough facts to state a claim to relief that is plausible on its face." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007) (modifying longstanding 12(b)(6) standard set out in Conley v. Gibson, 355 U.S. 41 (1957)). See also Ashcroft v. Iqbal, 556 U.S. ----, 129 S.Ct. 1937 (2009) (clarifying that Twombly standard applies beyond antitrust context). To survive a motion made pursuant to Fed. R. Civ. P. 12(b)(6), a plaintiff must "make a 'showing' rather than a blanket assertion of an entitlement to relief." Phillips v. County of Allegheny, 515 F.3d 224, 231 (3d Cir. 2008). In other words, she must supply "enough facts to raise a reasonable expectation that discovery" will reveal evidence supporting her claim. Id. at 232 (quoting Twombly, 550 U.S. at 556 n.3).

The United States Court of Appeals for the Third Circuit has instructed:

[A]fter Iqbal, when presented with a motion to dismiss for failure to state a claim, district courts should conduct a two-part analysis. First, the factual and legal elements of a claim should be separated. The District Court must accept all of the complaint's well-pleaded facts as true, but may disregard any legal conclusions. Second, a District Court must then determine whether the facts alleged in the complaint are sufficient to show that the plaintiff has a "plausible claim for relief." In other words, a complaint must do more than allege the plaintiff's entitlement to relief. A complaint has to "show" such an entitlement with its facts.

Fowler v. UPMC Shadyside, 578 F.3d 203, 210-11 (3d Cir. 2009). Where a court is unable to infer more than a mere possibility of misconduct, the complaint does not "show" that the pleader is entitled to relief.

With this standard in mind, the Court turns to the Amended Complaint.

B. Background*fn1

On April 13, 2006, Oravitz called Bergstrom, a Borough police officer and long time friend, in order to obtain a proof of service of legal papers. Bergstrom, who was on duty at the time, stated that he would get what she needed. (ECF No.6, ¶¶ 6, 80). Six days later, he delivered the proof of service to the Plaintiff at her home. (Id. at ¶ 7). That night, Bergstrom began to harass Oravitz via sexually graphic and offensive telephone calls and text messages.*fn2

This harassment occurred frequently through the end of June 2006. (Id. at ¶ 14).

In August 2006, "Oravitz contacted Officer Bergstrom and asked him to stop." (Id. at ¶ 15). She also called the Borough's Mayor in order to file a formal complaint against Bergstrom, and was told that she must do so by e-mail. According to the Plaintiff, "This requirement... was a roadblock to suppress the filing of complaints" and "was part of a deliberate indifference to Plaintiff's Civil Rights." (Id. at ¶¶ 17, 18). Although the harassment stopped temporarily, it resumed in January 2007. (Id. at ¶ 20).

On February 9, 2007, Plaintiff "and her husband attempted to confront Officer Bergstrom at the Harrison Hills Fire Hall." (Id. at 22). This effort was unsuccessful, and offensive calls began again the next day. (Id. at 24). At about the same time, Bergstrom initiated a practice of driving past the Plaintiff's home, intimidating her to the extent that she and her husband erected a privacy fence in front of the house. (Id. at ΒΆΒΆ 24-25). On March 7, 2007, Oravitz e-mailed the Borough Mayor, complaining for the second time about Bergstrom's conduct. The Mayor advised Bergstrom that Oravitz had filed a complaint. ...


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