United States District Court, E.D. Pennsylvania
DONALD P. RUSSO, ESQUIRE, On behalf of Plaintiff.
STEVEN E. HOFFMAN, ESQUIRE, EDWARD J. EASTERLY, ESQUIRE, On behalf of Defendants.
James Knoll Gardner, United States District Judge.
This matter is before the court on Defendants' Motion to Dismiss and/or Strike Plaintiff's Second Amended Complaint (" Motion to Dismiss/Strike" ) filed on November 13, 2012.  For the following reasons, I grant in part and deny in part defendants' Motion to Dismiss/Strike.
SUMMARY OF DECISION
I grant the Motion to Dismiss/Strike as unopposed to the extent that it seeks to dismiss plaintiff's procedural due process claim against defendant Chief MacLean because plaintiff did not respond to Chief MacLean's argument that plaintiff failed to plead sufficient facts supporting an inference that defendant Chief MacLean was involved in the decision to terminate plaintiff's employment without a pre-termination hearing.
Moreover, I grant the Motion to Dismiss/Strike and strike paragraph 104 from the Second Amended Complaint as immaterial because the treatment of other officers and individuals described in that paragraph does not bear on the procedural due process claim which it purports to support.
However, I deny the remaining portions of the Motion to Dismiss/Strike because, as explained more fully below, plaintiff's Second Amended Complaint sufficiently alleges claims under the Americans with Disabilities Act (" ADA" ),  and the Pennsylvania Human Relations Act (" PHRA" )  for failure-to-accommodate (Counts I and II) and unlawful retaliation (Count IV); and a claim against defendant City of Allentown under 42 U.S.C. § 1983 for violation of plaintiff's right to procedural due process pursuant to the Fourteenth Amendment to the United States Constitution (Count III).
Finally, I deny defendants' request to strike paragraphs 69-84, paragraph 108, and paragraph 111 because such averments, if believed, may show discriminatory animus on the part of Chief MacLean and are not so immaterial or scandalous that they must be stricken.
Jurisdiction in this case is based upon federal question jurisdiction pursuant to 28 U.S.C. § 1331. This court has supplemental jurisdiction over plaintiff's pendent state-law claims. See 28 U.S.C. § 1367.
Venue is proper pursuant to 28 U.S.C. § 1391(b) because the events giving rise to plaintiff's claims allegedly occurred in Lehigh County, Pennsylvania, which is located within this judicial district.
Plaintiff initiated this action on September 13, 2011 when he, together with David W. Benner and Douglas Perdick, filed a Complaint asserting claims against defendant City of Allentown and defendant Chief of Police Roger J. MacLean. 
On December 12, 2011, defendants filed a motion which sought to sever the claims of plaintiffs Benner and Perdick.  Also on December 12, 2011, defendant filed a motion to dismiss the claims asserted in the Complaint. 
On January 10, 2012, in response to defendants' first motion to dismiss, plaintiffs Sube, Benner and Perdick filed an Amended Complaint.  Also on January 10, 2012, plaintiffs Sube, Benner and Perdick filed a memorandum of law opposing the motion to sever. 
On January 31, 2012, Defendants filed a motion to dismiss the Amended Complaint.  Plaintiffs Sube, Benner and Perdick filed a response to defendant's second motion to dismiss on February 21, 2013. 
By Order dated September 26, 2012 and filed September 27, 2012, for the reasons expressed in that Order and its footnotes, I granted defendants' Motion to Sever and dismissed David W. Benner and Douglas Perdick as plaintiffs in this action without prejudice for Mr. Benner and Mr. Perdick to separately re-file their claims against defendants in separate civil actions on or before October 29, 2012.
Moreover, my September 26, 2012 Order dismissed the Amended Complaint without prejudice for plaintiff to file a Second Amended Complaint in this action on or before October 22, 2012. Finally, I dismissed defendants' motions to dismiss the Complaint and Amended Complaint as moot without prejudice for defendants' to seek dismissal if plaintiff filed a Second Amended Complaint in accordance with that Order.
Plaintiff filed his Second Amended Complaint on October 24, 2012. 
As noted above, defendants filed the within Motion to Dismiss/Strike on November 13, 2012. In opposition, Plaintiff's Memorandum was filed on November 26, 2012. Defendants' Reply Brief was filed on December 5, 2012.
Hence this Opinion.
STANDARD OF REVIEW
A claim may be dismissed under Federal Rule of Civil Procedure 12(b)(6) for " failure to state a claim upon which relief can be granted." A Rule 12(b)(6) motion requires the court to examine the sufficiency of the complaint. Conley v. Gibson, 355 U.S. 41, 45, 78 S.Ct. 99, 102, 2 L.Ed.2d 80, 84 (1957) (abrogated in other respects by Bell Atlantic Corporation v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). Generally, in ruling on a motion to dismiss, the court relies on the complaint, attached exhibits, and matters of public record, including other judicial proceedings. Sands v. McCormick, 502 F.3d 263, 268 (3d Cir. 2008).
Except as provided in Federal Rule of Civil Procedure 9, a complaint is sufficient if it complies with Rule 8(a)(2), which requires " a short and plain statement of the claim showing that the pleader is entitled to relief" . Rule 8(a)(2) does not require heightened fact pleading of specifics, but only enough facts to state a claim to relief that is plausible on its face. Twombly, 550 U.S. at 570, 127 S.Ct. at 1974, 167 L.Ed.2d at 949. 
In determining whether a complaint is sufficient, the court must accept all factual allegations as true, construe the complaint in the light most favorable to the plaintiff, and determine whether, under any reasonable reading, the plaintiff may be entitled to relief. Fowler, 578 F.3d at 210 (citing Phillips v. County of Allegheny, 515 F.3d 224, 233 (3d Cir. 2008)).
Although " conclusory" or " bare-bones allegations" will not survive a motion to dismiss, Fowler, 578 F.3d at 210, 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. Nonetheless, to survive a Rule 12(b)(6) motion, the complaint must provide " enough facts to raise a reasonable expectation that discovery will reveal evidence of the necessary element." Id. at 234 (quoting Twombly, 550 U.S. at 556, 127 S.Ct. at 1965, 167 L.Ed.2d at 940) (internal quotations omitted).
The court is required to conduct a two-part analysis when considering a Rule 12(b)(6)
motion. First, the factual matters averred in the complaint, and any attached exhibits, should be separated from legal conclusions asserted. Fowler, 578 F.3d at 210. Any facts pled must be taken as true, and any legal conclusions asserted may be disregarded. Id. at 210-211.
Second, the court must determine whether those factual matters averred are sufficient to show that the plaintiff has a " plausible claim for relief." Id. at 211 (quoting Iqbal, 556 U.S. at 679, 129 S.Ct. at 1950, 178 L.Ed.2d at 884).
Ultimately, this two-part analysis is " context-specific" and requires the court to draw on " its judicial experience and common sense" to determine if the facts pled in the complaint have " nudged [plaintiff's] claims" over the line from " [merely] conceivable [or possible] to plausible." Iqbal, 556 U.S. at 679-680, 129 S.Ct. at 1949-1951, 178 L.Ed.2d at 884-885.
A well-pled complaint may not be dismissed simply because " it strikes a savvy judge that actual proof of those facts is improbable, and that a recovery is very remote and unlikely." Twombly, 550 U.S. at 556, 127 S.Ct. at 1965, 167 L.Ed.2d at 940-941 (internal quotations omitted).
Based upon the well-pled averments in plaintiff's Second Amended Complaint, construed in the light most favorable to the plaintiff, which I must accept as true under the above standard of review, the pertinent facts are as follows.
Defendant City of Allentown (" Allentown" or " City" ) employed plaintiff Anthony Sube as a police officer beginning in April 2006. Defendant Police Chief Roger J. MacLean has offices within City's administrative offices. 
Plaintiff held the position of patrolman. His immediate supervisor was Sergeant Vargo. Plaintiff was qualified for the position and had an " above average" work history with the City of Allentown. 
On September 22, 2008, plaintiff was injured in the line of duty. Specifically, he suffered an injury which caused nerve damage to his right index finger and inability to move joints in his right hand. He was subsequently placed on light duty for six months.  Plaintiff's light duty assignment ended on March 22, 2009. He continued to work as an Allentown police officer after returning from light duty. 
On February 22, 2010 plaintiff requested Assistant Chief Joseph Hanna to change his shift time. Assistant Chief Hanna informed plaintiff that he would change plaintiff's working hours. Assistant Chief Hanna discussed plaintiff's request with Captain Warg, and informed Captain Warg that " based upon past practice, he was making a command decision and changing [Officer] Sube's hours because of [Officer] Sube's injury." 
Captain Warg told plaintiff to contact his secretary if plaintiff needed to " call off" for a doctor's appointment or court appearance. 
On February 26, 2010, plaintiff called off for his 7:00 a.m. shift because a snowstorm had blocked his driveway. At 9:00 a.m., plaintiff's Workers' Compensation attorney called to inform plaintiff of a mandatory Heart and Lung hearing at Allentown City Hall scheduled for that same day. The attorney stated that plaintiff's attendance would not be an issue, even though he had called off sick from work. 
When plaintiff arrived at Allentown City Hall for the hearing, Chief MacLean " glared" at plaintiff. Plaintiff asked whether his attendance at the hearing was an issue because he had called off work that day. Chief MacLean responded, " yes there will be a problem, that's what you get for using a sick day for a f**king snow storm." 
Chief MacLean holds the Americans with Disabilities Act, and officers seeking accommodation for their disabilities under the ADA, in low esteem. 
Following the February 26, 2010 hearing, plaintiff called the Fraternal Order of Police President, who informed plaintiff that he could be written up for reporting to City Hall for the hearing when he had called out sick from his shift. 
On April 9, 2010 plaintiff was transferred to the police department's Third Platoon.  Plaintiff asked Captain Warg if his transfer was " retaliation for the February 26, 2010 hearing incident." Captain Warg responded that he did not have time to supervise plaintiff. 
Plaintiff was scheduled to report to the Third Platoon on April 12, 2010. He informed Sergeant Snyder, by text message and telephone, that he had a Workers' Compensation hearing in Pottsville, Pennsylvania, on the same day which conflicted with his shift. 
At the April 12, 2010 hearing, Assistant Chief Hanna testified that plaintiff was required to be in a secure room when in the presence of suspects. Plaintiff's Workers' Compensation attorney informed plaintiff that a ...