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Brian andrekovich v. Lawrence Chenoga

August 6, 2012

BRIAN ANDREKOVICH, PLAINTIFF,
v.
LAWRENCE CHENOGA;
DONNA LELLOCK; MICHAEL PORADA;
ROBERT REESMAN;
WILLIAM SPENCER;
ROGER STEELE;
SUSAN GLESSNER; AND
THOMAS FEDIGAN, DEFENDANTS.



The opinion of the court was delivered by: David Stewart Cercone United States District Judge

Electronic Filing

OPINION

Plaintiff commenced this civil rights action seeking redress for alleged violations of his rights to procedural due process. Presently before the court is plaintiff's motion for leave to file a second amended complaint. Defendants oppose the motion. For the reasons set forth below, plaintiff's motion will be granted and defendants will be directed to file an answer.

Rule 15(a) provides that leave should be freely given "when justice so requires." Fed. R. Civ. P. 15(a). Determinations of whether to grant leave are committed to the sound discretion of the court. Foman v. Davis, 371 U.S. 178, 182 (1962). Grounds that justify a denial or conditional restriction include "undue delay, bad faith, dilatory motive, prejudice, and futility." Shane v. Fauver, 213 F.3d 113, 115 (3d Cir. 2000) (quoting In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1434 (3d Cir. 1997)). Denying leave based upon one or more of these factors must be grounded in specific findings that justify the exercise of the court's discretion. Coventry v. United States Steel Corp., 856 F.2d 514, 518 (3d Cir. 1988).

Defendants contend that granting leave would be futile because plaintiff's proposed second amended complaint suffers from the same fatal deficiencies defendants highlighted in their motion to dismiss plaintiff's first amended complaint. Those deficiencies include the failure to state a claim, untimeliness, non-cognizable damages and so forth. In addition, defendants complain that they will incur additional legal fees by yet again having to file a new motion to dismiss. Plaintiff contends that amendment is appropriate and needed to define properly the scope of his claims and the relief requested.

Defendants essentially challenge plaintiff's proposed second amended complaint pursuant to the standards governing a Rule 12(b)(6) motion and seek a ruling on the propriety of the claims therein. Accordingly, plaintiff's motion to amend will be resolved by assessing the allegations in the proposed second amended complaint pursuant to the standards governing a motion to dismiss.

It is well-settled that in reviewing a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) A[t]he applicable standard of review requires the court to accept as true all allegations in the complaint and all reasonable inferences that can be drawn therefrom, and view them in the light most favorable to the non-moving party.@ Rocks v. City of Philadelphia, 868 F.2d 644, 645 (3d Cir. 1989). Under the Supreme Court=s decision in Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 561 (2007), dismissal of a complaint pursuant to Rule 12(b)(6) is proper only where the averments of the complaint plausibly fail to raise directly or inferentially the material elements necessary to obtain relief under a viable legal theory of recovery. Id. at 544. In other words, the allegations of the complaint must be grounded in enough of a factual basis to move the claim from the realm of mere possibility to one that shows entitlement by presenting Aa claim to relief that is plausible on its face.@ Ashcroft v. Iqbal, B U.S. B, 129 S. Ct. 1937, 1949 (2009) (quoting Twombly, 550 U.S. at 570).

AA claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.@ Id. In contrast, pleading facts that only offer A>labels or conclusions= or >a formulaic recitation of the elements of a cause of action will not do,=@ nor will advancing only factual allegations that are merely consistent with a defendant=s liability. Id. Similarly, tendering only Anaked assertions@ that are devoid of Afurther factual enhancement@ falls short of presenting sufficient factual content to permit an inference that what has been presented is more than a mere possibility of misconduct. Id. at 1949-50; see also Twombly, 550 U.S. at 563 n. 8 (A complaint states a claim where its factual averments sufficiently raise a A>reasonably founded hope that the [discovery] process will reveal relevant evidence= to support the claim.@) (quoting Dura Pharmaceuticals, Inc. v. Broudo, 544 U.S. 336, 347 (2005) & Blue Chip Stamps v. Manor Drug Stores, 421 U.S. 723, 741 (1975)).

This is not to be understood as imposing a probability standard at the pleading stage. Iqbal, 129 S. Ct. at 1949 (AThe plausibility standard is not akin to a >probability requirement,= but it asks for more than a sheer possibility that a defendant has acted unlawfully.@); Phillips v. County of Allegheny, 515 F.3d 224, 235 (3d Cir. 2008) (same). Instead, A[t]he Supreme Court's Twombly formulation of the pleading standard can be summed up thus: >stating ... a claim requires a complaint with enough factual matter (taken as true) to suggest the required element ... [and provides] enough facts to raise a reasonable expectation that discovery will reveal evidence of the necessary element.=@ Phillips, 515 F.3d at 235; see also Wilkerson v. New Media Technology Charter School Inc., 522 F.3d 315, 321 (3d Cir. 2008) (AThe complaint must state >enough facts to raise a reasonable expectation that discovery will reveal evidence of the necessary element.=@) (quoting Phillips, 515 F.3d at 235) (citations omitted). AOnce a claim has been stated adequately, it may be supported by showing any set of facts consistent with the allegations in the complaint.@ Twombly, 550 U.S. at 563.

Under the above standards the second amended complaint sets forth the following. Plaintiff Brian Andrekovich became employed by Punxsutawney Borough ("Borough") as a police officer in 1996. Second Amended Complaint at ¶ 1. On the morning of August 15, 2009, plaintiff lawfully arrested an individual ("arrestee") for public drunkenness at a local business. Id. at ¶ 17. Plaintiff transported the arrestee to the Borough police station, where the warden logged the arrestee into custody. Id. at ¶ 18. The arrestee had fallen asleep and in order to prevent him from aspirating, the decision was made to leave the arrestee in the back of the police vehicle to inhibit him from rolling onto his back. Id. at ¶ 19. The arrestee was checked regularly over the next several hours by plaintiff and the warden and observed by the Borough Mayor and found to be sleeping; however, at the end of plaintiff's shift, the relieving officer discovered that the arrestee had died. Id. at ¶ 20-21.

On the same day, Defendant Thomas Fedigan, Chief of Police, lodged a criminal complaint with the Pennsylvania State Police, who commenced a criminal investigation of plaintiff. Id. at ¶ 22. Plaintiff immediately was suspended from the police force without notice or a hearing. Id. at ¶ 23.

Fedigan investigated the incident by interviewing several members of the police department, the warden and the mayor. He then conducted an interrogative custodial interview of plaintiff on September 8, 2009. Id. at ¶ 24. During this interview Fedigan questioned plaintiff about his conduct on August 15, 2009, but did not inform plaintiff of any charges against him. Id. at ¶¶ 24-25. Plaintiff did not receive "Miranda" warnings nor was he advised of any right to obtain representation. Id. at ¶ 26.

On September 8, 2009, Fedigan did provide plaintiff with a warning pursuant to Garrity v. New Jersey, 385 U.S. 493 (1967). Thereafter, Fedigan mischaracterized plaintiff's statements and the evidence from the investigation and improperly used the same against plaintiff at a hearing before the Unemployment Compensation Board of Review. Id. at ¶ 27.

On October 30, 2009, Fedigan conducted what he characterized as a Loudermill hearing. Id. at ¶ 28. Plaintiff received notice of the hearing less than 24 hours earlier. Id. at ¶ 29. At the hearing Fedigan did not allow plaintiff to complete his answers and did not inform him of the charges against him. Id. at ¶ 29. Fedigan informed plaintiff that evidence existed against him which did not exist and he attempted to get plaintiff to admit to certain factual acts which had not occurred. Id. at ¶ 30.

On or shortly before November 3, 2009, Fedigan conveyed to the Borough's council members that plaintiff had violated nonexistent "rules," "regulations," and "policies" and that he had deliberately omitted relevant information from his account of the incident. Id. at ¶ 32.

On November 3, 2009, Borough Council members Lawrence Chenoga, Donna Lellock, Michael Porado, Robert Reesman, William Spencer and Roger Steele voted to bring public charges against plaintiff and to terminate his employment.*fn1 Id. at ¶ 33. Defendants knew that plaintiff could not be terminated without cause and that cause did not exist for such action. Id. at

¶ 35. Defendants also knew that other officers were involved in maintaining the custody of the arrestee and yet singled plaintiff out for investigation, suspension and termination. Id. at ¶ 36.

On November 5, 2009, plaintiff was informed of his termination and for the first time, learned of the charges against him. Id. at ΒΆ 37. The charges were filed publicly on that day. Id. They included an allegation that plaintiff had been dishonest at the October 30, 2009, hearing by failing to admit to the charges which were first disclosed to plaintiff on November 5, 2009. Id. at 31. Plaintiff timely ...


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