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Marshall Pappert v. Borough of Bridgeville of Allegheny County

January 20, 2011

MARSHALL PAPPERT, PLAINTIFF,
v.
BOROUGH OF BRIDGEVILLE OF ALLEGHENY COUNTY,
PENNSYLVANIA; EDWARD BOGATS, JR.;
LORI COLLINS; AND DONALD DOLDE,
DEFENDANTS.



The opinion of the court was delivered by: Arthur J. Schwab United States District Judge

ELECTRONICALLY FILED

MEMORANDUM OPINION

Before the Court is Defendants‟ collective Motion to Dismiss Plaintiff‟s Complaint. Plaintiff, Marshall Pappert, originally filed this Section 1983 action in the Court of Common Pleas of Allegheny County, but it was removed to this Court by Defendants on December 15, 2010. See doc. no. 1.

On December 22, 2010, Defendants filed the instant Motion to Dismiss pursuant to Fed.R.Civ.P. 12(b)(6), primarily contending that this lawsuit is barred by the applicable two-year statute of limitations. See doc. no. 5. Defendants also contend that Plaintiff‟s allegations fail to describe any actionable violation of his First or Fourteenth Amendment rights. See doc. nos. 5 and 7. Finally, Defendants Edward Bogats, Jr., Lori Collins, and Donald Dolde, ("the Individual Defendants") argue that all claims brought against them were brought against them in their official capacities thereby entitling them to immunity. Id. Defendant, Borough Bridgeville of Allegheny County, Pennsylvania, ("Defendant Borough") contends that Plaintiff failed to plead the existence of a custom or a policy that would entitle him to recover against it. Id.

Plaintiff filed a response countering that he timely filed his federal and state claims and that he had substantively asserted valid causes of action. See doc. no. 8.

For reasons set forth more fully herein, Defendants‟ Motion to Dismiss will be granted; however, Plaintiff will be permitted to file an Amended Complaint as to certain claims.

I. Standard of Review

In considering a Rule 12(b)(6) motion, federal courts require notice pleading, as opposed to the heightened standard of fact pleading. Federal Rule of Civil Procedure 8(a)(2) requires only " "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 on which it rests.‟ " Bell Atlantic Corp. v. Twombly, 550 U.S. 554, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)).

To survive a motion to dismiss, plaintiff must allege sufficient facts that, if accepted as true, state "a claim to relief that is plausible on its face." Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009) (quoting Twombly, 550 at 570). A claim has facial plausibility when a plaintiff pleads facts that allow the court to draw the reasonable inference that the defendant may be liable for the misconduct alleged. Id. at 1949. However, the court is ""not bound to accept as true a legal conclusion couched as a factual allegation.‟ " Iqbal, 129 S.Ct. at 1950 (quoting Twombly, 550 U.S. at 555). In deciding a motion to dismiss, a court must determine whether the complaint "pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." PA Prison Soc. v. Cortes, 622 F.3d 215, 233 (3d Cir. 2010), citing Iqbal, 129 S.Ct. at 1949. "While legal conclusions can provide the framework of a complaint, they must be supported by factual allegations." Id.; see also Fowler v. UPMC Shadyside, 578 F.3d 203, 210-211 (3d Cir. 2009).

As explained succinctly by the United States Courts of Appeals for the Third Circuit:

Pursuant to Ashcroft v. Iqbal, [citation omitted], district courts must conduct a two-part analysis when presented with a motion to dismiss. Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d Cir.2009). "First, the factual and legal elements of a claim should be separated." Id. "The District Court must accept all of the complaint‟s well-pleaded facts as true, but may disregard any legal conclusions." Id. at 210-11. "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.‟ " Id. at 211 (quoting Iqbal, 129 S.Ct. at 1950). Edwards v. A.H. Cornell and Son, Inc., 610 F.3d 217, 219 (3d Cir. 2010).

When determining whether a plaintiff has met the second part of the analysis and presented facts sufficient to show a "plausible claim for relief," the Court must consider the specific nature of the claim presented and the facts pled to substantiate that claim. For example, in Fowler, a case predicated upon a violation of the Rehabilitation Act, the Court of Appeals determined that "[t]he complaint pleads how, when, and where [the defendant] allegedly discriminated against Fowler." 578 F.3d at 212. The Court, while noting that the Complaint was "not as rich with detail as some might prefer," it the "how, when and where" provided by the plaintiff sufficient grounds to establish plausibility. Id. at 211-212.

The Court of Appeals in Guirguis v. Movers Specialty Services, Inc., 346 Fed.Appx. 774, 776 (3d Cir. 2009), a civil rights and Title VII case, affirmed a decision to dismiss a plaintiff‟s complaint because the plaintiff failed to plead facts explaining why he believed his national origin was the basis for the termination of his employment .

Therefore, when deciding a motion to dismiss under Rule 12(b)(6), the district court should apply the following rules. The facts alleged in the complaint, but not the legal conclusions, must be taken as true and all reasonable inferences must be drawn in favor of plaintiff. Iqbal, 129 S.Ct. at 1949; Twombly, 550 U.S. at 555. We may not dismiss a complaint merely because it appears unlikely or improbable that plaintiff can prove the facts alleged or will ultimately prevail on the merits. Id. at 556, 563 n.8. Instead, we must ask whether the facts alleged raise a reasonable expectation that discovery will reveal evidence of the necessary elements. Id. at 556. In short, the motion to dismiss should not be granted if plaintiff alleges facts which could, if established at trial, entitle him to relief. Id. at 563 n.8. Generally speaking, a complaint that provides adequate facts to establish "how, when, where, and why" will survive a motion to dismiss. See Fowler and Guirguis, supra.

In the instant matter, because Defendants‟ primary argument is that Plaintiff‟s Complaint must be dismissed for failure to comply with the statute of limitations governing his various causes of action, this Court must also consider that "the statute of limitations . . . defense may be raised on a motion under Rule 12(b)(6), but only if the time alleged in the statement of a claim shows that the cause of action has not been brought within the statute of limitations." Bethel v. Jendoco Const. Corp., 570 F.2d 1168, 1174 (3d Cir. 1978) (internal quotation omitted). Accord, West Penn Allegheny Health System, Inc. v. UPMC, 627 F.3d 85, 106 fn. 13 (3d Cir. 2010) (Although Federal Rule of Civil Procedure 8(c) suggests that a statute of limitations defense cannot be used in the context of a Rule 12(b)(6) motion to dismiss . . . our cases recognize that a defendant may raise a limitations defense in a motion to dismiss). However, in order for a defendant to prevail, the plaintiff‟s tardiness in bringing the action must be apparent from the face of the complaint. Id.

"When the applicability of the statute of limitations is in dispute, there are usually factual questions as to when a plaintiff discovered or should have discovered the elements of [his] cause of action, and thus defendants bear a heavy burden in seeking to establish as a matter of law that the challenged claims are barred." Southern Cross Overseas Agencies, Inc. v. Wah Kwong Shipping Group Ltd., 181 F.3d 410, 425 (3d Cir. 1999) (citation omitted). "If the complaint‟s allegations, taken as true, allege facts sufficient to toll the statute of limitations, it must survive a motion to dismiss." Id.

It is on these standards that this Court has reviewed Defendants‟ Motion to Dismiss Plaintiff‟s Complaint.

II. Background

Plaintiff has asserted the following facts which this Court accepts as true solely for the purpose of adjudicating ...


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