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Stubbs v. Nutter

August 30, 2010


The opinion of the court was delivered by: DuBOIS, J.



This is an action asserted under the First and Fourteenth Amendments to the U.S. Constitution, through 28 U.S.C. § 1983 ("Section 1983"), and Pennsylvania common law. Plaintiff's claims arise out of his employment by the City of Philadelphia, as Chief Inspector of the Police Advisory Commission. Plaintiff alleges that he was constructively discharged in retaliation for advising a member of the public to report to the press illegal activities of the Philadelphia Police Department. This Court has jurisdiction over plaintiff's federal constitutional claims pursuant to 28 U.S.C. § 1331, and supplemental jurisdiction over his related state law claim pursuant to 28 U.S.C. § 1367.

Presently before the Court is defendants' Motion to Dismiss in Part, pursuant to Federal Rule of Civil Procedure 12(b)(6). Specifically, defendants seek dismissal of plaintiff's Section 1983 Fourteenth Amendment claims against all defendants, and plaintiff's wrongful termination claim against the City of Philadelphia. For the reasons set forth below, the Court grants defendants' motion to dismiss.


Plaintiff was hired by the Police Advisory Commission, Managing Director's Office, on or about March 12, 2002. (Compl. ¶ 13.) Plaintiff was promoted to Chief Inspector of the Police Advisory Commission in June 2004. (Compl. ¶ 14.) As an employee of the City of Philadelphia, plaintiff was required to establish and maintain a bona fide residence within the City. (Compl. ¶ 15.) In May 2007, plaintiff was investigated by the Inspector General's Office in relation to his residency status. (Compl. ¶ 15.) A hearing was held on the matter in the summer of 2007, and plaintiff was "officially cleared." (Compl. ¶ 16.)

On or about December 8, 2008, plaintiff met with Ventura Martinez, aka Benny Martinez, at the Police Advisory Commission. (Compl. ¶ 17.) Martinez reported to plaintiff that "there were illegal activities being conducted by the Philadelphia Police [Department's] Narcotic[s] Strike Force, and that [Martinez's] life was in danger due to his involvement." (Compl. ¶ 17.) Plaintiff subsequently aided Martinez in contacting a reporter for the Philadelphia Daily News, in order to "speak out about the police corruption." (Compl. ¶ 17.) A series of articles chronicling Martinez's allegations of police corruption were published in the Daily News, beginning on February 9, 2009,*fn2 and running through August 2009. (Compl. ¶¶ 18, 19.) The articles resulted in an "investigation by the Philadelphia District Attorney's Office, [the] overturning of conviction[s], and other official governmental actions." (Compl. ¶ 19.)

In mid-February 2009, plaintiff was summoned to several meetings with Deputy Mayor Gillison and the Director of the Police Advisory Commission, Bill Johnson, to discuss plaintiff's involvement with Martinez. (Compl. ¶¶ 20-21.) In one of those meetings, Gillison stated in substance to plaintiff, "the Mayor is very upset with you about this and it is going to cost[] the City a lot of money." (Compl. ¶ 21.)

In May 2009, plaintiff was informed by Tim Reddick and Carey King from the Philadelphia Controller's Office that he was again being investigated for a residency requirement violation. (Compl. ¶ 22.) In an August 2009 meeting, Reddick, King, and Johnson also raised allegations that plaintiff failed to report and pay city taxes on certain income, that plaintiff failed to file required financial disclosure statements for 2008, and that plaintiff had excessive undocumented sick leave time. (Compl. ¶ 25.) Plaintiff met once more with Johnson and Gillison in September 2009, to discuss the City Controller's Office Report regarding plaintiff's alleged residency violation. (Compl. ¶ 27.) On or about November 13, 2009, plaintiff was forced to resign from the Police Advisory Commission, under threat to his pension benefits. (Compl. ¶ 29.)

On July 1, 2010, plaintiff filed the instant Complaint, alleging that he was constructively discharged in retaliation for advising Martinez to contact the press regarding police misconduct, in violation of his First and Fourteenth Amendment rights, and in contravention of Pennsylvania common law prohibiting wrongful termination.


Rule 12(b)(6) of the Federal Rules of Civil Procedure provides that, in response to a pleading, a defense of "failure to state a claim upon which relief can be granted" may be raised by motion. In analyzing a motion to dismiss pursuant to Rule 12(b)(6), the Court "accept[s] all factual allegations as true, [and] construe[s] the complaint in the light most favorable to the plaintiff...." Phillips v. County of Allegheny, 515 F.3d 224, 231, 233 (3d Cir. 2008) (internal quotations omitted).

"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, 234 (3d Cir. 2007) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). 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) (quoting Twombly, 550 U.S. at 570). To satisfy the plausibility standard, a plaintiff's allegations must show that defendant's liability is more than "a sheer possibility." Id. "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).

In Twombly, the Supreme Court utilized a "two-pronged approach" which it later formalized in Iqbal. Iqbal, 129 S.Ct. at 1950; Fowler v. UPMC Shadyside, 578 F.3d 203, 210-11 (3d Cir. 2009). Under this approach, a district court first identifies those factual allegations which 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. Iqbal, 129 S.Ct. at 1950. The court then assesses "the 'nub' of the ...

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