The opinion of the court was delivered by: Baylson, J.
MEMORANDUM RE: DEFENDANT'S MOTION TO DISMISS THIRD AMENDED COMPLAINT
The Plaintiff, Suzanne Nelling, initiated this action after she was wrongfully incarcerated in October 2010. In her Third Amended Complaint, Nelling alleges that her former parole officer, Defendant Amy Theodore, is liable (1) under 42 U.S.C. § 1983 for violating her right to liberty under the Due Process Clause, and (2) under state law for the tort of false imprisonment. Currently before the Court is Defendant's Rule 12(b)(6) Motion to Dismiss both claims. For the reasons discussed below, the Court will DENY Defendant's motion and order limited discovery to enable Nelling to pursue her claims.
In 2007, Nelling was convicted of Theft by Unlawful Taking in Delaware County's Court of Common Pleas and sentenced to four days to twenty-three months imprisonment with immediate parole. From 2007 to 2009, the Defendant, Amy Theodore (an employee of the Adult Probation and Parole Services of Delaware County), served as Nelling's parole officer. On July 17, 2009, Theodore requested a bench warrant for Nelling after she failed to pay restitution pursuant to the terms of her parole. On August 7, 2009, after Nelling paid the restitution, Theodore requested that the bench warrant be rescinded. The bench warrant was rescinded on September 9, 2009; however, during an encounter with police on October 2, 2010, Nelling was arrested and incarcerated on the basis of this warrant.
Initially, Nelling filed suit against many defendants, including "Unknown Employees of the County of Delaware"; "Unknown Employees of Delaware County Board of Prison Inspectors"; and "Unknown Employees of George W. Hill Correctional Facility." In the process of amending her Complaint, however, Nelling has winnowed down the list of Defendants to a single party: Theodore. Nelling alleges Theodore is liable on both constitutional and state tort grounds based on the following averments:
C. Plaintiff's Allegations
On or about October 4, 2010, officials from the Delaware County prison informed Theodore that Nelling had been incarcerated based on the bench warrant Theodore requested in July 2009. 3d Am. Compl. ¶ 7. Despite knowing "there was no lawful reason for plaintiff's incarceration," Theodore "did not secure plaintiff's release from Delaware County Prison until October 21, 2010." Id. ¶¶ 9-10.
Nelling avers that Theodore was "the only state law enforcement official who knew that plaintiff was unlawfully incarcerated." ¶ 11. Based on this, Nelling alleges that Theodore had "a duty to promptly secure plaintiff's release from prison after she was notified of plaintiff's unlawful incarceration." Id. Due to Theodore's "negligence, carelessness, indifference, recklessness, and willful misconduct," she failed to perform this duty. Id. ¶¶ 13.
Nelling's allegations in her Third Amended Complaint are similar to those she made in her Second Amended Complaint, which the Court considered and dismissed without prejudice pursuant to Defendants' Rule 12(b)(6) Motion to Dismiss. Nelling v. Cnty. of Del., No. 11-6973, 2012 WL 3996113 (E.D. Pa. Sept. 11, 2012). The Court dismissed Nelling's constitutional claim because she had not "clearly articulated a legal theory under which Theodore would be liable for violating these rights."*fn1 Id. at *5. The Court dismissed the state tort claim because Nelling had not "sufficiently pleaded the intent element of a claim for false imprisonment." Id.
In allowing Nelling leave to amend, the Court stated it would "afford Nelling one more, final, opportunity to amend her complaint to clarify her civil rights claim." Id. In affording Nelling this opportunity, the Court explicitly requested that she "make her existing legal theories, causes of action, and factual allegations clear" in a manner consistent with the "requirements set forth in Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009)." Id. With respect to Nelling's false imprisonment claim, the Court granted leave to amend "but only if she can responsibly do so." Id. at 12. As the Court stated, it would not be sufficient for Nelling "to simply state in a conclusory fashion that Theodore intended to confine her." Id.
On September 24, 2012, Nelling filed her Third Amended Complaint. (ECF No. 55). A comparison of Nelling's Second and Third Amended Complaints reveals some differences in their factual content. The Third Amended Complaint includes three new factual averments: (1) Theodore "knew the July 2009 Bench Warrant had been rescinded by the Court in September 2009," (2) Theodore "knew there was no lawful reason for plaintiff's incarceration," and (3) Theodore was "the only state law enforcement officer who knew that plaintiff was unlawfully incarcerated. 3d Am. Compl. ¶¶ 8-9, 11.
The Third Amended Complaint also omits an allegation from Nelling's previous complaints. Specifically, Nelling no longer references or attaches an October 27, 2010 letter from Theodore to Nelling, in which Theodore explained (six days after Nelling's release) that Nelling's incarceration was the result of an error in the National Computer Information Center ("NCIC"). The NCIC, a "computerized index of criminal justice information . . . . available to Federal, state, and local law enforcement," assists law enforcement in "apprehending fugitives." National Crime Information Center (NCIC)-FBI Information Systems, http://www.fas.org/irp/agency/doj/fbi/is/ncic.htm (last visited Jan. 9, 2013). In Nelling's previous complaints, she alleged that error(s) by unknown person(s) ...