United States District Court, W.D. Pennsylvania
S. Sansone, Esquire Elizabeth Tuttle, Esquire Danielle M.
Vugrinovich, Esquire Estell K. McGrath, Esquire April L.
Cressler, Esquire Paul Alexander Custer, Esquire Timothy R.
Stewart Cercone United States District Judge
Mitchell ("plaintiff") commenced this action
seeking redress for alleged violation of his First Amendment
rights. Presently before the court are defendants'
motions to dismiss. For the reasons set forth below, the
motions will be granted.
well-settled that in reviewing a motion to dismiss under
Federal Rule of Civil Procedure 12(b)(6) "[t]he
applicable standard of review requires the court to accept as
true all allegations in the complaint and all reasonable
inferences that can be drawn therefrom, and view them in the
light most favorable to the non-moving party." Rocks
v. City of Philadelphia, 868 F.2d 644, 645 (3d Cir.
1989). Under the Supreme Court's decision in Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 561 (2007),
dismissal of a complaint pursuant to Rule 12(b)(6) is proper
only where the averments of the complaint plausibly fail to
raise directly or inferentially the material elements
necessary to obtain relief under a viable legal theory of
recovery. Id. at 544. In other words, the
allegations of the complaint must be grounded in enough of a
factual basis to move the claim from the realm of mere
possibility to one that shows entitlement by presenting
"a claim to relief that is plausible on its face."
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting
Twombly, 550 U.S. at 570).
claim has facial plausibility when the plaintiff pleads
factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct
alleged." Id. In contrast, pleading facts that
only offer "'labels or conclusions' or 'a
formulaic recitation of the elements of a cause of action
will not do, '" nor will advancing only factual
allegations that are "'merely consistent with' a
defendant's liability." Id. Similarly,
tendering only "naked assertions" that are devoid
of "further factual enhancement" falls short of
presenting sufficient factual content to permit an inference
that what has been presented is more than a mere possibility
of misconduct. Id. at 1949-50; see also
Twombly, 550 U.S. at 563 n. 8 (A complaint states a
claim where its factual averments sufficiently raise a
"'reasonably founded hope that the [discovery]
process will reveal relevant evidence' to support the
claim.") (quoting Dura Pharmaceuticals, Inc. v.
Broudo, 544 U.S. 336, 347 (2005) & Blue Chip
Stamps v. Manor Drug Stores, 421 U.S. 723, 741 (1975));
accord Morse v. Lower Merion School Dist., 132 F.3d
902, 906 (3d Cir. 1997) (a court need not credit "bald
assertions" or "legal conclusions" in
assessing a motion to dismiss) (citing with approval Charles
Alan Wright & Arthur R. Miller, Federal Practice and
Procedure § 1357 (2d ed. 1997) ("courts, when
examining 12(b)(6) motions, have rejected 'legal
conclusions, ' 'unsupported conclusions, '
'unwarranted inferences, ' 'unwarranted
deductions, ' 'footless conclusions of law, ' or
'sweeping legal conclusions cast in the form of factual
not to be understood as imposing a probability standard at
the pleading stage. Iqbal, 556 U.S. at 678
("'The plausibility standard is not akin to a
'probability requirement, ' but it asks for more than
a sheer possibility that a defendant has acted
unlawfully.'"); Phillips v. County of
Allegheny, 515 F.3d 224, 235 (3d Cir. 2008) (same).
Instead, "[t]he Supreme Court's Twombly
formulation of the pleading standard can be summed up thus:
'stating ... a claim requires a complaint with enough
factual matter (taken as true) to suggest the required
element ... [and provides] enough facts to raise a reasonable
expectation that discovery will reveal evidence of the
necessary element.'" Phillips, 515 F.3d at
235; see also Wilkerson v. New Media Technology Charter
School Inc., 522 F.3d 315, 321 (3d Cir. 2008)
("'The complaint must state 'enough facts to
raise a reasonable expectation that discovery will reveal
evidence of the necessary element.'") (quoting
Phillips, 515 F.3d at 235) (citations omitted).
"Once a claim has been stated adequately, it may be
supported by showing any set of facts consistent with the
allegations in the complaint." Twombly, 550
U.S. at 563.
complaint as read in the light most favorable to plaintiff
provides the background that follows. In 2015 plaintiff was a
part-time police officer who ran for the elected position of
school director in the defendant South Allegheny School
District. Complaint (Doc. No. 1) at ¶ 9, 13. The
nomination petition he initially filed with the Elections
Department of Allegheny County contained "several minor
errors." Id. at ¶ 14. Notwithstanding that
such minor errors are common among inexperienced candidates
and often the candidate is permitted to refile the petition
upon becoming aware of such errors, defendant J. Jason Elash,
Esquire, "a practicing attorney barred in the
Commonwealth of Pennsylvania" filed objections to
plaintiff's petition and a petition to set it aside on
behalf of a local citizen. Id. at ¶ 15. Elash
then filed additional objections on behalf of two additional
local citizens, one of whom was a democrat and one whom was a
republican. Id. at ¶ 16.
was a colleague, close friend and a co-worker of defendant
George Gobel. Id. at ¶ 17. Gobel held multiple
positions in the community: he was the solicitor of both the
South Allegheny School District ("the school
district" or "the district") and Liberty
Borough ("the borough"); and he also held the
position of human resources officer at the school district.
Id. at ¶ 6. Plaintiff believes that Gobel
instructed Elash to file the objections and petition to
prevent plaintiff from running for office and that Elash did
so for the purpose of accomplishing the same. Id. at
then embarked on a series of undertakings to dissuade
plaintiff from pursuing his campaign for office. Gobel
accused plaintiff of various violations stemming from his
incorrect petition. Id. at ¶ 22. These included
making a false statement under oath, violating borough
ordinances that purportedly precluded officers from running
for office, and engaging in conduct unbecoming an officer.
capacity as borough solicitor Gobel caused the scheduling of
a Loudermill hearing on the alleged violations.
Id. Just prior to the scheduled hearing Gobel stated
to a lieutenant in the borough police force that
"[plaintiff] needs to drop out, or things will get
dirty." Id. at ¶ 24. The hearing was held
on March 27, 2015. Id. at ¶ 25. At the hearing
Gobel stated to plaintiff: "you are not to run. I have
my people picked." Id. at ¶ 26. He also
accused plaintiff of engaging in prohibited activity by
running for office while being a police officer and
threatened to report the matter to the district attorney if
plaintiff did not withdraw from the race. Id. at
¶ 27. These accusations were "false."
Id. at ¶ 28.
was not disciplined or criminally prosecuted at the
conclusion of the Loudermill hearing. Plaintiff
continued in his campaign for school director. Id.
at ¶ 29.
August of 2015 Gobel began raising the issue of amending the
collective bargaining agreement ("CBA") governing
the borough's police force. A grant from the district
attorney's office had created the funding for a full-time
police officer position to act as a school resource officer
for the school district. Plaintiff was a union steward for
the rank and file employees of the police force. Id.
at ¶¶ 11, 31-32.
proposed an addendum to the CBA that would prohibit the
school resource officer from engaging in political activity.
This included holding any elected or appointed office on any
level of government. Id. at ¶ 33. At that time
five employees of the school district held a political office
within the borough. Id. at ¶ 34. Gobel began to
negotiate with plaintiff about adding the addendum to the
CBA. Id. at ¶ 31.
September of 2015, Gobel "verbally offered  plaintiff
the full-time school resource officer position on the
condition that plaintiff withdraw from the race for school
director." Id. at ¶ 37. Plaintiff did not
respond to the offer. Id.
September 14, 2015, Gobel drafted a petition to remove
plaintiff from the race. The petition cited "the
possibility of plaintiff's employment" as the
resource officer and a potential conflict with the proposed
addendum as the reasons for the withdrawal. Id. at
¶ 38. The addendum had not been added to the CBA.
Id. at ¶ 39. Gobel met with plaintiff at the
police department and informed him that the petition had to
be filed that day. Id. at ¶ 40. Plaintiff
decline and continued to run. Id. at ¶ 41.
September 16, 2015, the school district adopted a resolution
creating the new resource officer position. It then appointed
Glenn R. Bonczek to the position. Id. at ¶ 42.
On September 18, 2015, Gobel terminated negotiations with
plaintiff's union regarding the addition of the addendum
to the CBA. Id. at ¶ 43.
time in the past Liberty Borough Chief of Police Luke Rilley
had informed plaintiff that he would be promoted to
lieutenant upon Lieutenant Roper's retirement from the
police department. Id. at ¶ 49. Lieutenant
Roper retired in October of 2015. Id. at ¶ 50.
Plaintiff was not promoted. Id. Instead, a less
experienced and less qualified officer, Ray Johnson, was
promoted to lieutenant. Id. at ¶ 51. At the
same time, a less experienced and less qualified officer,
Josh Byers, was promoted to a newly created position of
sergeant. Id. at ¶ 52.
asked Chief Rilley why plaintiff had not been promoted to
lieutenant notwithstanding the prior assurances Chief Rilley
had given. Id. at ¶ 57. Chief Rilley responded:
"[you] should not have burned [your] bridges."
police department promotions must be voted on and approved by
Liberty Borough's council. The council voted to promote
Johnson and to create the position of sergeant and promote
Byers into it. Id. at ¶ 53.
on the above, plaintiff has formed the following beliefs:
1) Gobel and Elash conspired to prevent plaintiff from
running for office; Id. at ¶ 20;
2) Gobel scheduled the Loudermill hearing to prevent
plaintiff from pursuing his candidacy for school director;
Id. at ¶ 23;
3) Gobel made the threat of making things get dirty, the
accusation that plaintiff was engaging in prohibited activity
and the threat of reporting plaintiff to the district
attorney to prevent plaintiff from pursuing his campaign;
Id. at ¶ 29;
4) Gobel proposed the addendum to the CBA solely to prevent
plaintiff from running for office and participating in the
election process; Id. at ¶ 36;
5) Gobel used his power and influence as solicitor for the
borough and human resources officer for the district to
attempt to "force" plaintiff to withdraw from the
race; Id. at ¶ 44;
6) Gobel used his power and influence as solicitor for the
borough and human resources officer to attempt to implement
policies that made plaintiff's appointment to the
fulltime position of school resource officer impossible;
Id. at ¶ 45;
7) Gobel created the proposed addendum to the CBA in
retaliation for plaintiff's refusal to withdraw from the
race; Id. at ¶ 46;
8) Gobel created the proposed addendum to the CBA for the
sole purpose of preventing plaintiff from continuing with his