Opinion
CIVIL ACTION No. 01-CV-6143
July 24, 2003
MEMORANDUM
Plaintiff Nathaniel Harley, formerly a Philadelphia police officer, asserts three counts against the City of Philadelphia, Captain Daniel Castro, and Captain Michael Weaver. Count I of the amended complaint alleges that defendants violated his First Amendment right to freedom of speech. Count II avers that defendants violated § 2000e-3(a) of Title VII of the Civil Rights Act of 1964. Count III claims that defendants violated the Fourteenth Amendment's Due Process Clause. Before me is defendants' motion to dismiss Counts I and III of the amended complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). In addition, defendants contend that plaintiff cannot recover punitive damages against the City of Philadelphia. Because plaintiff does not contest the motion to dismiss Count III and asserts that he never sought punitive damages against the municipal defendant, I will grant the motion as to those claims. Also, because the amended complaint and an attached exhibit fails to allege that plaintiff engaged in protected speech, I will grant the motion as it pertains to Count I.
In July 1997, when plaintiff was on an extended medical leave of absence from his position as a Philadelphia police officer defendant Weaver attempted to serve plaintiff at his home with notice of a approaching Internal Affairs Division interview. Weaver, then a Lieutenant in the police department's Internal Affairs Division, allegedly flashed his weapon in violation of police department policy when plaintiff's nephew answered the door.
The amended complaint asserts that an newspaper article, appearing in the Philadelphia Daily News on April 5, 2000, recounted Weaver's alleged misconduct from 1997. The article cited a report by the Police Advisory Commission ("PAC") as its source. Plaintiff contends that following the publication of the article defendants harassed Harley and retaliated by pursuing disciplinary charges against plaintiff pertaining to unrelated incidents. However, the amended complaint does not mention how Weaver's alleged misconduct was revealed to PAC or suggest that plaintiff informed the commission. Plaintiff's Response To Defendant's Partial Motion To Dismiss, however, reveals that "Plaintiff testified before the PAC at length regarding the incident." Id. at 2.
A Rule 12(b)(6) motion to dismiss examines the sufficiency of the complaint. Conley v. Gibson, 355 U.S. 41, 45 (1957). "The pleader is required to `set forth sufficient information to outline the elements of his claim or to permit inferences to be drawn that these elements exist.'" Kost v. Kozakiewicz, 1 F.3d 176, 183 (3d Cir. 1993), quoting 5A Charles A. Wright Arthur R. Miller, Federal Practice and Procedure § 1357, at 340 (2d ed. 1990). In determining the sufficiency of the complaint I must accept all the plaintiff's allegations as true and draw all reasonable inferences therefrom. Graves v. Lowery, 117 F.3d 723, 726 (3d Cir. 1997).
The Federal Rules of Civil Procedure do not require a claimant to set out in detail the facts upon which he bases his claim. To the contrary, all the Rules require is "a short and plain statement of the claim" that will give the defendant fair notice of what the plaintiff's claim is and the grounds upon which it rests.Id., quoting Conley, 355 U.S. at 47. "Thus, a court should not grant a motion to dismiss `unless it appears beyond a doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.'" Graves, 117 F.3d at 726, quoting, Conley, 355 U.S. at 45-46.
In the present case, Count I of the amended complaint fails allege a necessary element of a First Amendment claim. To assert a viable claim for retaliation under the First Amendment, plaintiff must first aver that he engaged in protected speech. See Baldassare v. State of New Jersey, 250 F.3d 188, 194-95 (3d Cir. 2001). Although plaintiff's response to defendants' motion to dismiss clearly states how PAC learned of Weaver's alleged misconduct, this information cannot be gleaned from the face of the amended complaint or the accompanying exhibit. In fact, judging from the incongruity of the amended complaint's narrative, plaintiff appears to have purposefully omitted an assertion that plaintiff engaged in protected speech. Although plaintiff need not present detailed facts in his complaint, he must at a minimum allege sufficient information to outline the elements of his claim. Kost, 1 F.3d at 183. Therefore, I will dismiss the complaint with leave to amend.
The Court of Appeals has explained the framework for asserting a First Amendment retaliation claim for public employees:
A public employee's retaliation claim for engaging in protected activity must be evaluated under a three-step process. First, plaintiff must establish the activity in question was protected. For this purpose, the speech must involve a matter of public concern. Once this threshold is met, plaintiff must demonstrate his interest in the speech outweighs the state's countervailing interest as an employer in promoting the efficiency of the public services it provides through its employees.
If these criteria are established, plaintiff must then show the protected activity was a substantial or motivating factor in the alleged retaliatory action. Lastly, the public employer can rebut the claim by demonstrating "it would have reached the same decision . . . even in the absence of the protected conduct."Baldassare, 250 F.3d at 194-95 (citations omitted).
ORDER
AND NOW, this day of July 2003, after considering defendants' motion to dismiss, and the plaintiff's response thereto, and for the reasons set forth in the accompanying memorandum, it is ORDERED that:
1. The motion to dismiss Count I is GRANTED and Count I is DISMISSED with leave to amend within 20 days from this date;
2. The motion to dismiss Count III is GRANTED and Count III is DISMISSED;
3. The motion to dismiss any claim for punitive damages against the municipal defendant is GRANTED and any such claims are DISMISSED.