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Dock v. Rush

October 29, 2010


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



Before the Court in this civil rights action asserted on behalf of a decedent, Jeremy W. Dock ("the decedent" or "Jeremy Dock") is Defendants Ruth Rush, Donald Reade, and Donald Campbell's ("Defendants") Motion to Dismiss the Amended Complaint for failure to state a claim upon which relief could be granted pursuant to Federal Rule of Civil Procedure 12(b)(6). (Doc. 44.) For the reasons articulated in this Memorandum, the Court shall grant the Motion and dismiss this action. 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, 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.


We incorporate by reference the factual background as articulated in our December 7, 2009 Memorandum and Order. (Doc. 29.) We will, however, briefly recount the procedural history of this action because it demonstrates the bewildering tenacity of the Plaintiffs to try this action on their own terms, often in defiance of Court orders, that supports our decision to dismiss the action.

Plaintiffs Jeffrey Dock and Linda Long ("Plaintiffs") initiated this action as executors of the estate of Jeremy A. Dock ("Dock" or "the decedent") by filing a Complaint against Defendants Ruth Rush, Donald Reade, Donald Campbell, Trooper Rick Blair, and Snyder County (collectively, "Defendants") on April 2, 2009. (Doc. 1.) Plaintiffs asserted claims under the First, Eighth, and Fourteenth Amendments*fn1 and state-law claims for negligence, wrongful death, and survivorship. Pursuant to Motions to Dismiss by all Defendants (Docs. 9, 11), we dismissed Snyder County and Trooper Blair as Defendants, (thus dismissing Plaintiffs' state-law and Fourteenth Amendment claims), and granted Plaintiffs leave to amend their Eighth and First Amendment claims against Defendants Rush, Reade, and Campbell. (Doc. 29.) We advised Plaintiffs that, if it were not for the leniency we must give civil rights plaintiffs, their remaining claims were subject to dismissal for failure to state a claim. We noted that Plaintiffs failed to assert that the Defendants were aware of any threat to Dock's life or that they failed to take reasonable measures to protect Dock; in fact, the allegations in the Complaint indeed demonstrated that the officials took steps to protect Dock. Any such amended complaint was due on or before December 27, 2009.

Instead of filing an amended complaint as directed, Plaintiffs filed a Motion for Reconsideration of the Court's December 7, 2009 Order. (Doc. 30.) We denied the Motion for Reconsideration on April 21, 2010 because in our view the Motion was "patently unwarranted." (Doc. 34.) We again directed Plaintiffs to file an amended complaint within fourteen (14) days of the date of that Order. (Id.)

On August 6, 2010, with the pretrial conference looming within a month, Defendants filed another motion to dismiss and brought to the Court's attention that Plaintiffs failed to file an amended complaint as directed by our April 21, 2010 Order. That motion, however, was out of time so we denied the motion as stated, but sua sponte addressed Plaintiffs' failure to prosecute the action and, more seriously, failure to abide by a court order. (See Doc. 37.) On August 18, 2010, we struck the action from a trial term and ordered Plaintiffs to show cause within seven (7) days why the action should not be dismissed for their failure to comply with a Court Order and prosecute the action, and noted that failure to abide with the order to show cause shall result in dismissal of the action. (Doc. 37.)

Apparently our directive that the case would be dismissed if Plaintiffs failed to comply was interpreted as a suggestion rather than a mandate. Instead of demonstrating on the record good cause for their failure to comply and attaching a proposed amended complaint, "Plaintiffs [] yet again failed to abide by this Order, and Plaintiffs' counsel [] again wasted the Court's time with nonsensical filings by instead filing what appears to be a motion requesting discovery before Plaintiffs file an amended complaint." (Doc. 37 pp. 1-2.) Tapping, and exhausting, reserves of patience ...

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