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Burdge v. Arnold

August 5, 2010


The opinion of the court was delivered by: Hon. John E. Jones III



Before the Court in this civil rights action is Defendants David Arnold ("Arnold") and John Leahy's ("Leahy") (collectively, "Defendants") Motion to Dismiss Plaintiff Andrea Kohut Burdge's ("Plaintiff" or "Burdge") Second Amended Complaint ("the Motion"), filed on May 21, 2010. (Doc. 29). The Motion has been fully briefed by both parties and thus is ripe for disposition. (Docs. 30-31). For the reasons articulated in this Memorandum, the Court will grant the motion and dismiss the Second Amended Complaint. And appropriate Order shall enter.


Plaintiff initiated this action with the filing of a Complaint on July 7, 2009. Plaintiff subsequently filed an Amended Complaint on July 9, 2009. (Doc. 2). The Amended Complaint was substantively identical to original complaint, except that in the Amended Complaint the last name of Plaintiff and her husband was spelled properly and two alleged dates were changed. Plaintiff alleged in the Amended Complaint that Defendants violated a litany of her First Amendment Rights. (See generally Doc. 2). Defendants filed a Motion to Dismiss on September 8, 2009, asserting that Plaintiff failed to state a claim upon which relief can be granted. (See generally Doc. 9). On January 8, 2010, the Court issued a Memorandum and Order ("the January 8, 2010 Order"), granting in part and denying in part Defendants' Motion to Dismiss. Specifically, the Court dismissed Plaintiff's First Amendment claims regarding her right to associate and her right to petition the Government for grievances and granted Plaintiff leave to amend her First Amendment retaliation claims. (See generally Doc. 19).

After the January 8, 2010 Order, Plaintiff first filed a Motion to Vacate (or Reconsider) the Order. (Doc. 24). After we found that there were no asserted grounds for reconsideration, we denied the motion (Doc. 27) and Plaintiff subsequently filed the instant Second Amended Complaint (Doc. 28). The substance and allegations of the Second Amended Complaint (detailed below) display very little new material and contain information relating to the claims that were dismissed in the January 8, 2010 Order. The only claim remaining is a retaliation for protected speech claim, asserted under the First Amendment.


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, 129 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.


In accordance with the standard of review, the following well-pleaded facts and inferences are derived from the Second Amended Complaint (Doc. 28) and are viewed in the light most favorable to the Plaintiff. Also in accordance with the standard of review we need not, and thus do not, accept or consider the factual allegations that constitute nothing more than "legal conclusions" or "naked assertions".

Plaintiff formerly worked as a Lebanon County Detective. Defendant Arnold was the District Attorney of Lebanon County, and Defendant Leahy was employed by the Lebanon County Detective Bureau. (Doc.2 ¶¶ 7-8).Plaintiff's husband, Michael Burdge, was at all relevant times the Chief of Police of Annville Township, located within Lebanon County. (Doc. 28 ¶¶ 9-10).Plaintiff alleges that her husband was "disliked" by Defendants and that both he and Annville Township ...

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