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Deborah Rearick v. Susan J. Wiedemer

August 6, 2012


The opinion of the court was delivered by: Judge Caputo


Currently before me is the Defendants' Motion to Dismiss Plaintiff Deborah Rearick's Third Amended Complaint. (Doc. 58.) After being given leave to amend solely as to her Second Amendment claim, the Third Amended Complaint fails to properly allege such a cause of action. Therefore, this matter will be dismissed.


Plaintiff Deborah Rearick alleges the following in her Third Amended Complaint. Rearick is an employee of the Pennsylvania State University ("PSU"). Defendants Susan Wiedemer and Robert Maney are Rearick's supervisors. On May 5, 2011, Rearick was forced to attend a meeting with these two Defendants. At that meeting, Rearick was immediately ordered to surrender her keys, and was not provided with any explanation about what was going on. When she attempted to leave, Rearick was told that there would be consequences if she did. Rearick was then questioned about her conceal and carry gun permit which she has for protection in her business activities. Although Rearick has never brought a firearm on PSU's campus, this questioning was apparently related to a dream Plaintiff had approximately seventeen (17) years earlier and incorproated into a memorandum. Rearick was then sent to meet with the PSU in-house mental counselor. There, Rearick was intimidated into agreeing to surrender her gun permit if it would make others feel better. And, although she was told that she was not crazy, Rearick was instructed not to return to work before getting an independent psychiatric exam. Rearick completed such an exam and was told she could report back to work.

As a result of these events, "Plaintiff alleges she was and is being retaliated against for filing her complaints and that the defendants are using her lawful and proper possession of a carry and conceal gun permit, conduct which is protected by the 2nd Amendment to the U.S. Constitution, as a way to harm and injure the plaintiff in violation of her 1st and 2nd Amendment rights." (Id. at ¶ 26.) In Count I of the Third Amended Complaint, Rearick brings a claim for a violation of her rights under the petition clause of the First Amendment. In Count II, Rearick brings a claim for the violation of her Second Amendment rights.


A. Legal Standard

Federal Rule of Civil Procedure 12(b)(6) provides for the dismissal of a complaint, in whole or in part, for failure to state a claim upon which relief can be granted. When considering a Rule 12(b)(6) motion, the Court's role is limited to determining if a plaintiff is entitled to offer evidence in support of their claims. See Scheuer v. Rhodes, 416 U.S. 232, 236 (1974). The Court does not consider whether a plaintiff will ultimately prevail. See id. A defendant bears the burden of establishing that a plaintiff's complaint fails to state a claim. See Gould Elecs. v. United States, 220 F.3d 169, 178 (3d Cir. 2000).

"A pleading that states a claim for relief must contain . . . a short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a). The statement required by Rule 8(a)(2) must give the defendant fair notice of what the . . . claim is and the grounds upon which it rests.'" Erickson v. Pardus, 551 U.S. 89, 93 (2007) (per curiam) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Detailed factual allegations are not required. Twombly, 550 U.S. at 555. However, mere conclusory statements will not do; "a complaint must do more than allege the plaintiff's entitlement to relief." Fowler v. UPMC Shadyside, 578 F.3d 203, 211 (3d Cir. 2009). Instead, a complaint must "show" this entitlement by alleging sufficient facts. Id.

As such, the inquiry at the motion to dismiss stage is "normally broken into three parts: (1) identifying the elements of the claim, (2) reviewing the complaint to strike conclusory allegations, and then (3) looking at the well-pleaded components of the complaint and evaluating whether all of the elements identified in part one of the inquiry are sufficiently alleged." Malleus v. George, 641 F.3d 560, 563 (3d Cir. 2011).

Dismissal is appropriate only if, accepting as true all the facts alleged in the complaint, a plaintiff has not pleaded "enough facts to state a claim to relief that is plausible on its face," Twombly, 550 U.S. at 570, meaning enough factual allegations "'to raise a reasonable expectation that discovery will reveal evidence of'" each necessary element, Phillips v. County of Allegheny, 515 F.3d 224, 234 (3d Cir. 2008) (quoting Twombly, 550 U.S. at 556). "The plausibility standard is not akin to a 'probability requirement,' but it asks for more than a sheer possibility that a defendant has acted unlawfully." Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009). "When there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief." Id. at 1950.

In deciding a motion to dismiss, the Court should consider the allegations in the complaint, exhibits attached to the complaint, and matters of public record. See Pension Benefit Guar. Corp. v. White Consol. Indus., Inc., 998 F.2d 1192, 1196 (3d Cir. 1993). The Court may also consider "undisputedly authentic" documents when the plaintiff's claims are based on the documents and the defendant has attached copies of the documents to the motion to dismiss. Id. The Court need not assume the plaintiff can prove facts that were not alleged in the complaint, see City of Pittsburgh v. W. Penn Power Co., 147 F.3d 256, 263 & n.13 (3d Cir. 1998), or credit a complaint's "'bald assertions'" or "'legal conclusions,'" Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 906 (3d Cir. 1997) (quoting In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1429-30 (3d Cir. 1997)).

B. Analysis

1. Inclusion of First ...

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