United States District Court, M.D. Pennsylvania
MALACHY E. MANNION, District Judge.
This suit is the second filed by plaintiff against the City of Wilkes-Barre and its officials in this court. The instant case, Hammond II, follows Hammond I,  which was filed in November 2009 and lingered contentiously in this court for more than four years. In Hammond I, plaintiff and his wife sued the city, its mayor, and an assistant city attorney alleging various constitutional violations. Plaintiff Tyler Hammond, a Wilkes-Barre firefighter, brings the instant suit alleging that on account of filing Hammond I, and the publicity that Hammond I received, he is being subjected to a retaliatory disciplinary hearing based on Wilkes-Barre Mayor Tom Leighton's belief that plaintiff created a satirical website lampooning Mayor Leighton. He also alleges that he was the subject of a retaliatory criminal investigation. Plaintiff avers that he has committed no crime and that the hearing and investigation are trumped-up proceedings in retaliation for his filing and maintaining Hammond I.
Plaintiff Tyler Hammond instituted this suit on September 6, 2013, (Doc. 1), and filed an amended complaint on October 15, 2013. (Doc. 9). He filed a second amended complaint on June 13, 2014, (Doc. 25), with leave of the court, following this court's granting of defendant's first motion to dismiss for failure to state a claim. (Docs. 23, 24). Before the court now is defendants' motion to dismiss the second amended complaint. The second amended complaint contains one count alleging First Amendment retaliation pursuant to 42 U.S.C. § 1983 against the City of Wilkes-Barre and its mayor Thomas Leighton and, seemingly, a Monell liability claim against Wilkes-Barre for failure to train its officials not to retaliate against a citizen who engages in free speech.
Plaintiff, a city firefighter, alleges that he has been retaliated against for the protected activity of filing a lawsuit. He alleges retaliation in facing a disciplinary hearing on September 6, 2013 regarding a satirical website about Mayor Leighton, which it was believed he may have created. Plaintiff, his union representative, and City of Wilkes-Barre Human Resources Director Melissa Schatzel were present at the disciplinary hearing. Plaintiff suggests that the timing of the hearing shows its retaliatory nature, because his attorney was scheduled to take depositions in Hammond I on the morning of September 6. Plaintiff does not allege that he was disciplined in any way as a result of this meeting.
Plaintiff also alleges that in October of 2013, two weeks after he was deposed in the Hammond I matter, the City of Wilkes-Barre Police Department began a criminal investigation against him to determine whether he had been falsely holding himself out to others as the mayor of Wilkes-Barre. He was contacted by a police detective on October 1 and was asked to come to the police station for an interview. Plaintiff alleges that the mayor directed the criminal investigation of plaintiff to occur, arguing that the mayor "would be the only person concerned about someone impersonating him." (Doc. 25, at 8). Plaintiff also alleges that "it is clear that [Mayor Leighton] was copied on the notice setting up the hearing date" based on a police investigation, although plaintiff did not attach this notice to the complaint. (Id., at 7). Plaintiff denies creating a satirical website or impersonating the mayor or any other similar action. Plaintiff does not allege that he was charged with a crime or arrested.
Defendants have moved to dismiss the second amended complaint. (Doc. 26). The motion has been fully briefed. (Docs. 28, 29, 30).
II. STANDARD OF REVIEW
The defendant's motion to dismiss is brought pursuant to the provisions of Fed.R.Civ.P. 12(b)(6). This rule provides for the dismissal of a complaint, in whole or in part, if the plaintiff fails to state a claim upon which relief can be granted. The moving party bears the burden of showing that no claim has been stated, Hedges v. United States, 404 F.3d 744, 750 (3d Cir. 2005), and dismissal is appropriate only if, accepting all of the facts alleged in the complaint as true, the plaintiff has failed to plead "enough facts to state a claim to relief that is plausible on its face, " Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 1974 (2007) (abrogating "no set of facts" language found in Conley v. Gibson, 355 U.S. 41, 45-46 (1957)). The facts alleged must be sufficient to "raise a right to relief above the speculative level." Twombly, 550 U.S. 544, 127 S.Ct. at 1965. This requirement "calls for enough fact[s] to raise a reasonable expectation that discovery will reveal evidence of" necessary elements of the plaintiff's cause of action. Id . Furthermore, in order to satisfy federal pleading requirements, the plaintiff must "provide the grounds of his entitlement to relief, " which "requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Phillips v. County of Allegheny, 515 F.3d 224, 231 (3d Cir. 2008) (brackets and quotations marks omitted) ( quoting Twombly, 550 U.S. 544, 127 S.Ct. at 1964-65).
In considering a motion to dismiss, the court generally relies on the complaint, attached exhibits, and matters of public record. See Sands v. McCormick, 502 F.3d 263 (3d Cir. 2007). The court may also consider "undisputedly authentic document[s] that a defendant attaches as an exhibit to a motion to dismiss if the plaintiff's claims are based on the [attached] documents." Pension Benefit Guar. Corp. v. White Consol. Indus., 998 F.2d 1192, 1196 (3d Cir. 1993). Moreover, "documents whose contents are alleged in the complaint and whose authenticity no party questions, but which are not physically attached to the pleading, may be considered." Pryor v. Nat'l Collegiate Athletic Ass'n, 288 F.3d 548, 560 (3d Cir. 2002). However, the court may not rely on other parts of the record in determining a motion to dismiss. See Jordan v. Fox, Rothschild, O'Brien & Frankel, 20 F.3d 1250, 1261 (3d Cir. 1994).
Generally, the court should grant leave to amend a complaint before dismissing it as merely deficient. See, e.g., Fletcher-Harlee Corp. v. Pote Concrete Contractors, Inc., 482 F.3d 247, 252 (3d Cir. 2007); Grayson v. Mayview State Hosp., 293 F.3d 103, 108 (3d Cir. 2002); Shane v. Fauver, 213 F.3d 113, 116-17 (3d Cir. 2000). "Dismissal without leave to amend is justified only on the grounds of bad faith, undue delay, prejudice, or futility." Alston v. Parker, 363 F.3d 229, 236 (3d Cir. 2004).
Plaintiff brings a claim for First Amendment retaliation pursuant to 42 U.S.C. §1983. Although he does not list it as a separate count, plaintiff also alleges that the City has ...