Opinion
03-4701.
May 19, 2004
EXPLANATION AND ORDER
On August 14, 2003, plaintiff Tracy Jordan filed this civil rights action against defendants Philadelphia Housing Authority [PHA], Carl Greene, Richard Zappile, John Haggerty and Marc Walker. Count One of the complaint alleges violations of the First and Fourteenth amendments by Greene, Zappile, Haggerty and Walker ["the individual defendants"] in their individual capacities. Count Two alleges due process violations under 42 U.S.C. § 1983 against the individual defendants in their individual capacities. Count Three alleges violations of 42 U.S.C. § 1983 against PHA and the individual defendants in their official capacities. Count Four alleges violations of the Pennsylvania Whistleblowing Law, 43 Pa. Const. Stat. Ann. § 1421 (1986) against all defendants in their official and individual capacities.
Counts Two and Four of the complaint are headed with the wrong plaintiff's name (both counts read "Cavicchia v. Greene" etc.) Defendants argue that these counts should be dismissed because "Cavicchia" is not a named plaintiff. Plaintiff is granted leave to amend these counts of the complaint without prejudice.
Before the court are two motions to dismiss. PHA has moved to dismiss Count Four (Docket #3), and the individual defendants have moved to dismiss all counts against them in both their individual and official capacities (Docket #2). The court has federal subject matter jurisdiction over the case.
The individual defendants have moved to dismiss all four counts of the complaint. Defendants first argue that plaintiff has failed to allege each defendant's personal involvement in the alleged wrong. "A defendant in a § 1983 action must have personal involvement in the alleged wrongs." Robinson v. Pittsburgh, 120 F.3d 1286, 1294 (3d. Cir. 1997). Plaintiff has alleged that all defendants contributed to his termination because of his opposition to PHA's practices. This allegation is a sufficient pleading of personal involvement at this stage of the litigation. Because this is the only argument defendants raise against Count One, the motion to dismiss Count One will be denied.
In considering motions to dismiss for failure to state a claim, the Court takes all well pleaded allegations as true, construes the complaint in the light most favorable to the plaintiff, and determines whether, under any reasonable reading of the pleadings, the plaintiff may be entitled to relief.Colburn v. Upper Darby Twp., 838 F.2d 663, 665 (3d. Cir. 1988).
Punitive Damages
Plaintiff requests compensatory and punitive damages for all four counts. Defendants argue that the punitive damages claims against them in both their official and individual capacities should be dismissed. All charges against the defendants in their official capacities are already being dismissed. Turning to the punitive damages against defendants in their individual capacities, defendants argue that plaintiff has not alleged that the conduct was reckless or willful enough to warrant punitive damages. Punitive damages may be awarded for conduct that is outrageous, because of the defendant's evil motive or his reckless indifference to the rights of others. Burke v. Maassen, 904 F.2d 178, 191 (3d. Cir. 1990). The remaining counts against the individual defendants allege that the individual defendants violated plaintiff's First and Fourteenth amendment rights by terminating him for expressing his opinions, violated plaintiff's due process rights, and terminated plaintiff for his whistleblowing activities. This conduct, if proven, could constitute reckless indifference. Therefore, the punitive damages claims are not dismissed.
Count Two: Due Process
Defendants argue that plaintiff's due process claim fails as a matter of law because plaintiff had a grievance and arbitration procedure available to him that he elected not to use. This grievance procedure is not described in the complaint, is outside my ability to exercise judicial notice, and is not attached to the complaint. I am bound to employ only those facts in the complaint in my analysis of a motion to dismiss. Therefore, the motion to dismiss this claim is not ripe for review and will be denied.
Counts Three and Four: Defendants in their official capacities
Defendants argue that plaintiff's claims against the individual defendants in their official capacities must be dismissed as redundant because plaintiff is also suing the PHA. Plaintiff has conceded this point, and the claims against the individual defendants in their official capacities will be dismissed.
Count Four: Whistleblower Claim
Defendants argue that Count Four is within the exclusive jurisdiction of the PLRB and must be dismissed. Analysis of this claim requires additional evidence as to the nature of plaintiff's whistleblower allegations, and is not ripe for review. Conclusion
The following counts remain: Counts One and Two in their entirety, Count Three solely against PHA, and Count Four against PHA and the individual defendants in their individual capacities.
ORDER
AND NOW, this day of 2004, it is ORDERED that plaintiff is granted leave to file an amended complaint by May 26, 2004 to amend the headings of Counts Two and Four.It is further ordered that defendants Carl Greene, Richard Zappile, John Haggerty and Marc Walker's motion to dismiss (Docket #2) is resolved as follows:
• The motion to dismiss Count One is DENIED;
• The motion to dismiss Count Two is DENIED;
• The motion to dismiss Count Three against the individual defendants in their official capacities is GRANTED;
• The motion to dismiss Count Four against the individual defendants in their individual capacities is DENIED; and
• The motion to dismiss Count Four against the individual defendants in their official capacities is GRANTED.
It is further ordered that defendant PHA's motion to dismiss Count Four (Docket #3) is DENIED.