JOHN J. MASSI, Plaintiff,
CITY OF PHILADELPHIA et al., Defendants.
GENE E.K. PRATTER UNITED STATES DISTRICT JUDGE
In his Second Amended Complaint (“SAC”), Police Sergeant John Massi brings claims against the City of Philadelphia (“the City”), Philadelphia Police Commissioner Charles Ramsey, Deputy Police Commissioner Kevin Bethel, and police officers Anthony Washington, Bruce Allen, and Dennis Vest. The Defendants move to dismiss the pleading.
I. FACTUAL AND PROCEDURAL BACKGROUND
Because Mr. Massi’s latest complaint changes very little, and nothing material, the Court will not resummarize the allegations of fact that accompanied the Court’s review of his initial complaint, except where relevant in the discussion below. See generally Massi v. City of Philadelphia, No. 12-1309, 2013 WL 1194643 (E.D. Pa. Mar. 25, 2013). Indeed, only a few of the counts are at issue here. Mr. Massi has withdrawn Counts 2, 3, and 7, see Resp. ¶¶ 15, 23, which are therefore dismissed with prejudice. He has also “agreed with the Court’s ruling dismissing” Counts 5, 8, and 9, see Resp. ¶¶ 16, 24-25, which are likewise dismissed with prejudice. The Court also deems Count 12 to be withdrawn, and therefore dismissed with prejudice, because “Plaintiff concedes that there is [sic] insufficient facts beyond speculation to infer knowing overt acts by agreement in furtherance of a custom, policy, practice, and/or direct conduct violating the Plaintiff’s Constitutional Rights.” Resp. ¶ 14. The Defendants do not challenge at this stage Count 11, for intentional infliction of emotional distress against Messrs. Washington and Vest, or Count 13, for assault and battery against Mr. Washington and Mr. Vest.
Thus, the remaining counts for adjudication at this juncture are:
1. Count 1, brought pursuant to 42 U.S.C. § 1983, against “[a]ll Defendants’ who are African-Americans knowingly, intentionally, willfully, maliciously, wantonly, grossly negligent, recklessly and deliberately indifferent conduct” which violated Mr. Massi’s “rights to be free from racial discrimination as a Caucasian male police officer at the hands of African-American police officers . . . and to be free from harassment and retaliation because [he] exercised his constitutional rights under the First and Fourteenth Amendments to complain about and seek redress for violations of his constitutional, civil and other rights.” SAC ¶ 113.
4. Count 4, brought pursuant to § 1983, against the City of Philadelphia, for its failure “to properly train and supervise Defendants Ramsey, Washington, Bethel, Allen and Vest” and its gross negligence, deliberate indifference, and recklessness “with respect to the potential violation of constitutional rights . . . pursuant to an unconstitutional, custom policy and practice.” SAC ¶¶ 125-28.
6. Count 6, brought pursuant to Title VII of the Civil Rights Act of 1964, against only the City of Philadelphia for its “knowingly, intentionally, willfully, maliciously, wantonly, grossly negligent, recklessly and deliberately indifferent” conduct with regard to the discrimination against Mr. Massi “because of race and gender in hiring, transfer and promotions, ” in favor of “lesser qualified African-American police officers for the bike patrol unit headed by Defendant Allen.” SAC ¶ 130. Mr. Massi confirms that, as Count 6 has been rephrased, “the facts relevant to the Plaintiff’s discrimination claim must arise from allegations subsequent to April 8, 2008.” Resp. ¶ 19; and
10. Count 10, for Defendants’ alleged retaliation against Mr. Massi for his filing complaints of discrimination, in violation of the Petition Clause of the First Amendment.
The Defendants have moved to dismiss each of these four counts, namely, 1, 4, 6, and 10.
II. STANDARD OF REVIEW
A Rule 12(b)(6) motion to dismiss tests the sufficiency of a complaint. Although Rule 8 of the Federal Rules of Civil Procedure requires only “a short and plain statement of the claim showing that the pleader is entitled to relief, ” Fed.R.Civ.P. 8(a)(2), “in order to ‘give the defendant fair notice of what the . . . claim is and the grounds upon which it rests, ’” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (citation omitted) (alteration in original), the plaintiff must provide “more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do, ” id.
To survive a motion to dismiss, the plaintiff must plead “factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Specifically, “[f]actual allegations must be enough to raise a right to relief above the speculative level.” Twombly, 550 U.S. at 555. The question is not whether the claimant “will ultimately prevail . . . but whether his complaint [is] sufficient to cross the federal court’s threshold.” Skinner v. Switzer, 131 S.Ct. 1289, 1296 (2011) (citation and internal quotation marks omitted). Thus, assessment of the sufficiency of a complaint is “a context-dependent exercise” because “[s]ome claims require more factual explication than others to state a plausible claim for relief.” W. Penn Allegheny Health Sys., Inc. v. UPMC, 627 F.3d 85, 98 (3d Cir. 2010).
In evaluating the sufficiency of a complaint, the Court adheres to certain well-recognized parameters. For one, the Court “must consider only those facts alleged in the complaint and accept all of the allegations as true.” ALA, Inc. v. CCAIR, Inc., 29 F.3d 855, 859 (3d Cir. 1994); see also Twombly, 550 U.S. at 555 (stating that courts must “assum[e] that all the allegations in the complaint are true (even if doubtful in fact)”); Mayer v. Belichick, 605 F.3d 223, 230 (3d Cir. 2010) (“[A] court must consider only the complaint, exhibits attached to the complaint, matters of public record, as well as undisputedly authentic documents if the complainant’s claims are based upon these documents.”). Also, the Court must accept as true all reasonable inferences emanating from the allegations, and view those facts and inferences in the light most favorable to the nonmoving party. See Rocks v. City of Philadelphia, 868 F.2d 644, 645 (3d Cir. 1989); see also Revell v. Port Auth., 598 F.3d 128, 134 (3d Cir. 2010). That admonition does not demand that the Court ignore or discount reality. The Court “need not accept as true unsupported conclusions and unwarranted inferences, ” Doug Grant, Inc. v. Greate Bay Casino Corp., 232 F.3d 173, 183-84 (3d Cir. 2000) (citations and internal quotation marks omitted), and “the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Ashcroft, 556 U.S. at 678; see also Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 906 (3d Cir. 1997) (explaining that a court need not accept a plaintiff’s “bald assertions” or “legal conclusions” (citations omitted)). Finally, “if a [claim] is vulnerable to 12(b)(6) dismissal, a district court must permit a curative amendment, unless an amendment would be inequitable or futile.” Phillips v. County of Allegheny, 515 F.3d 224, 236 (3d Cir. 2008).
For the reasons that follow, Count 1, for racial discrimination in violation of the Equal Protection Clause of the Fourteenth Amendment, will survive only as to Mr. Allen, and only for a single incident. Count 4, Mr. Massi’s Monell claim, must fail as deficiently pleaded, although the Court will grant Mr. Massi leave to amend in the event that he can plead facts to bring the single-incident claim within the narrow circumstances articulated below. Mr. Massi’s request for reconsideration of Count 6, discrimination in violation of Title VII, is denied. Finally, Count 10, for retaliation in violation of the First Amendment, is dismissed with leave to amend to cure the pleading deficiencies identified below.
A. Intentional Discrimination in Violation of the Equal Protection Clause of the Fourteenth Amendment and Municipal Liability Under Monell (Counts 1 and 4)
1.Intentional Discrimination in Violation of the Equal Protection Clause of the Fourteenth Amendment (Count 1)
Mr. Massi’s factual allegations are sufficient to establish a claim for racial discrimination in violation of the Equal Protection Clause of the Fourteenth Amendment only as to Mr. Allen, and only for a single incident. “To bring a successful claim under 42 U.S.C. § 1983 for a denial of equal protection, plaintiffs must prove the existence of purposeful discrimination. They must demonstrate that they received different treatment from that received by other individuals similarly situated.” Chambers ex rel. Chambers v. Sch. Dist. of Phila. Bd. of Educ., 587 F.3d 176, 196 (3d Cir. 2009) (quoting Andrews v. City of Philadelphia, 895 F.2d 1469, 1478 (3d Cir. 1990)). A plaintiff’s failure to “allege any facts showing that he was treated differently than any similarly situated individuals” is fatal to his equal protection claim. Slavoski v. Pawlowski, 462 F. App’x 215, 218 (3d Cir. 2012); accord, e.g., Vurimindi v. City of Philadelphia, 521 F. App’x 62, 66 (3d Cir. 2013) (per curiam), cert. denied, No. 13-384, 2013 WL 5352481 (Dec. 2, 2013)
(“Absent specific allegations as to the allegedly similarly situated parties, [Plaintiff] has not made plausible the conclusion that those parties exist and that they are like him in all relevant aspects. Accordingly, [he] failed to state an equal protection claim.”); Gomez v. Feissner, 474 F. App’x 53, 57-58 (3d Cir. 2012) (“Because [Plaintiff] does not allege that either [Defendant] treated him differently from any similarly situated individuals that actually existed, he fails to state a valid equal protection claim against them.”); Santos v. Sec’y of D.H.S, No. 12-4151, 2013 WL 1749474, at *3 (3d Cir. Apr. 24, 2013) (per curiam) (“[T]he amended complaint asserts blanket, non-specific allegations that Santos was treated differently because of his race and/or gender. There are no specific allegations illustrating how Santos was treated differently than those similarly situated. Accordingly, the Equal Protection claims also fail.”); Johnson v. Phila. Hous. Auth., 448 F. App’x 190, 193 (3d Cir. 2011) (per curiam) (“Johnson has not pleaded that he was treated differently from any similarly situated person or group.”).
Although his Second Amended Complaint is somewhat difficult to parse, the Court has identified the following factual allegations as potentially germane to this analysis; they are provided below along with the Court’s analysis of their relevance. With the exception of a sole allegation regarding Mr. Allen, Mr. Massi’s factual allegations fail to identify any similarly situated individuals and, further, to establish any reasonable inference of racial discrimination:
• Mr. Massi is Caucasian. SAC ¶¶ 11, 21.
• Mr. Washington, Mr. Allen, and Mr. Vest are African-Americans. SAC ¶¶ 16-18. The racial identities of the parties, standing alone, is far from sufficient to establish any reasonable inference of racial discrimination.
• Mr. Massi conclusorily asserts, “As averred hereinafter, Sgt. Massi complains of an ongoing and pervasive pattern of discrimination, retaliation, harassment and otherwise illegal conduct by several supervisory and high ranking African-American police officials and African-American police officers at the City of Philadelphia Police Department against him for many years . . . .” SAC ¶ 20. This allegation is conclusory and will not ...