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Saleem v. School District of Philadelphia

United States District Court, Third Circuit

October 24, 2013

YUSUF SALEEM
v.
SCHOOL DISTRICT OF PHILADELPHIA et al.

MEMORANDUM

O’NEILL, J.

Plaintiff Yusef Saleem, a behavioral health specialist, mobile therapist, and school clinician was a contract employee with defendant Children’s Crisis Treatment Center (CCTC) beginning in 2013 until his termination on June 18, 2010. Am. Compl., Dkt. No. 19 at ¶ 5. Defendant the School District of Philadelphia used CCTC to provide its schools with therapeutic and intervention services for the District’s students. Id. at ¶ 6.

Plaintiff alleges that he was attacked and suffered injuries from an encounter with a male student suspected to be physically assaulting one of his female classmates while he was outsourced to General F. Reynolds Elementary School as a clinician. Id. at ¶¶ 8, 10, 12, 17. After meeting with police detectives, plaintiff pressed charges against the student who assaulted him and informed his CCTC supervisor that he had pressed charges and filed a police report. Id. at ¶¶ 18-19. Plaintiff further alleges that shortly thereafter, his direct supervisor at CCTC informed him that the school principal did not want Saleem to return “because of the ‘conflict’ between [Saleem] and the student” he pressed charges against. Id. at ¶ 20. Plaintiff alleges that several days later CCTC discharged him for “unprofessional conduct, because he filed criminal charges against the student.” Id. at ¶ 22.

Plaintiff previously filed a complaint alleging four claims against defendant the School District seeking damages related to the termination of his employment. I dismissed Saleem’s claims of wrongful termination and his claim of tortious interference with contract against the School District. I reserved judgment on his claim against the School District for a violation of his right to free speech under the Pennsylvania Constitution and permitted him leave to file a memorandum to address whether there is legal authority permitting such a claim for damages to proceed under the Constitution. I also dismissed plaintiff’s claim that the School District conspired and retaliated against him for exercising his First Amendment rights but granted him leave to amend. See Saleem v. Sch. Dist. of Phila., No. 12-3193, 2013 WL 140613 (E.D. Pa. Jan. 11, 2013).

Plaintiff has filed an amended complaint that is identical to his first complaint with the exception of four additional paragraphs of allegations under Count I.[1] Also, plaintiff failed to submit a memorandum in support of his Count III claims for damages under the Pennsylvania Constitution within thirty days of my Order as permitted.[2] Now before me are plaintiff’s amended complaint, the School District’s motion to dismiss, and plaintiff’s response thereto.[3]

To survive the School District’s motion to dismiss, plaintiff must allege “‘enough facts to raise a reasonable expectation that discovery will reveal evidence of’ the necessary element.” Wilkerson v. New Media Tech. Charter Sch. Inc., 522 F.3d 315, 321 (3d Cir. 2008), quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556 (2007). Typically, “a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, ” though plaintiff’s obligation to state the grounds of entitlement to relief “requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Twombly, 550 U.S. at 555. “Factual allegations must be enough to raise a right to relief above the speculative level . . . on the assumption that all of the allegations in the complaint are true (even if doubtful in fact).” Id. (citations omitted). This “simply calls for enough facts to raise a reasonable expectation that discovery will reveal evidence of” the necessary element. Id. at 556. The Court of Appeals has made clear that after Ashcroft v. Iqbal, 556 U.S. 662 (2009), “conclusory or ‘bare-bones’ allegations will no longer survive a motion to dismiss: ‘threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.’ To prevent dismissal, all civil complaints must now set out ‘sufficient factual matter’ to show that the claim is facially plausible.” Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d Cir. 2009), quoting Iqbal, 556 U.S. at 678.

I. Count I: Monell Liability

Plaintiff asserts a claim against the School District pursuant to Monell v. Department of Social Services of City of New York, 436 U.S. 658, 691 (1978). In Monell “the Supreme Court established that a municipality cannot be held liable under § 1983 for the constitutional torts of its employees by virtue of respondeat superior.” McGreevy v. Stroup, 413 F.3d 359, 367 (3d Cir. 2005). But where a municipal entity’s employees violate a constitutionally protected right pursuant to a formal government policy or standard operating procedure long accepted within the government entity, the municipality can be found liable. Id. at 367. Plaintiff’s amended complaint attempts to establish municipal liability with allegations of a School District policy or custom. Am. Compl., Dkt. No. 19 at ¶¶ 24-27. Saleem alleges that his termination by the school principal constituted state action pursuant to § 1983 because:

(a) “Defendant the School District of Philadelphia, including through the School Reform Commission (SRC) has a policy, practice, procedure and custom of firing employees and/or directing the firing of contracted employees who report criminal acts to the police of students in its schools.” Am. Compl., Dkt. No. 19 at ¶ 24.
(b) Defendant gave “instructions” to the General F. Reynolds Elementary School principal to “inform CCTC to fire plaintiff” and prevent him from returning to the school. Id. at ¶ 25.
(c) Defendant “endorsed” the principal’s decision to “remove [p]laintiff from the [school] and to instruct CCTC to fire him.” Id. at ¶ 26.
(d) “The School Reform Commission (SRC) endorsed, approved, and/or directed that [p]laintiff be removed from his position at [the school] and that he not be allowed to work in other schools within the School District of Philadelphia.” Id. at ¶ 27.

While plaintiff has attempted to rectify the failure in his first complaint to allege the requisite municipal policy or custom, he does not provide any additional facts in his amended complaint to support his expanded allegations. His amended complaint as to Count I is identical to his first complaint, with the exception of these four additional paragraphs that merely summarize and restate his cause of action. Id. at ¶¶ 24-27; 39-43. Plaintiff alleges that his CCTC supervisor “upon the direction of the School principal, [informed him that] he was not to return to the school, because of the ‘conflict’ between [p]laintiff and the student, ” id. at ¶ 20, and that on June 18, 2010, “CCTC informed [him] that he was fired for the reason of unprofessional conduct.” Id. at ¶ 22. Plaintiff fails to set forth any factual allegations to substantiate the newly alleged policy, practice, procedure, custom, endorsement or approval of the School District in his allegedly retaliatory termination from employment.

I find that plaintiff’s amended allegations are not sufficient under the standard set forth in Twombly and Iqbal. They amount to a mere recitation of the required elements of his claim. Pared down to its essential elements, plaintiff’s claim is that the school principal acted pursuant to a policy or procedure of the School District to retaliate against those who exercise their constitutionally protected First Amendment rights. Yet his amended complaint provides no factual details regarding the existence, scope or application of the alleged School District policy, practice, procedure or custom of the School District’s, that is essential to his ...


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