MATTHEW W. BRANN, District Judge.
This case presents a question about the constitutionality of a search and seizure in a college dormitory environment. The primary issue presented cannot be decided by the Court at the motion to dismiss stage of the proceedings, and, consequently, several of the claims will proceed to discovery.
Plaintiffs, Kevin Wagner, Fraiser Etsy, and Tony Migliori, are three former students at Bucknell University in Lewisburg, Pennsylvania, who filed a complaint on December 19, 2013.
Defendants as a collective group acted in concert, but can be classified into two general categories. Defendants Julie A. Holtzapple, James R. Middleton, Michael C. Giffiths, Degg H. Stark, Susan L. Lantz, Jason D. Friedberg, Lewis A. Marrara, II, Amy A. Badal, Wayne A. Bromfield, Michael A. Smyer, John C. Bravman, and Bucknell University are all related to Bucknell and, will hereinafter be collectively referred to as the "Bucknell Defendants"). The second group of defendants are Ernest R. Ritter, III, Jeffrey A. Tice, Justin N. Rosbosch
On August 6, 2014 both sets of defendants filed motions to dismiss the second amended complaint. For the reasons that follow, the motions will be granted in part and denied in part.
When considering a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), a court must view all allegations stated in the complaint as true and construe all inferences in the light most favorable to plaintiff. Hishon v. King & Spalding, 467 U.S. 69, 73, 104 S.Ct. 2229, 81 L.Ed.2d 59 (1984); Kost v. Kozakiewicz, 1 F.3d 176, 183 (3d Cir.1993). However, "the tenet that a court must accept as true all of the [factual] allegations contained in the complaint is inapplicable to legal conclusions." Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (internal citations omitted). In ruling on such a motion, the court primarily considers the allegations of the pleading, but is not required to consider legal conclusions alleged in the complaint. Kost, 1 F.3d at 183. "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Iqbal, 556 U.S. at 678, 129 S.Ct. 1937. At the motion to dismiss stage, the court considers whether plaintiff is entitled to offer evidence to support the allegations in the complaint. Maio v. Aetna, Inc., 221 F.3d 472, 482 (3d Cir.2000).
A complaint should only be dismissed if, accepting as true all of the allegations in the amended complaint, plaintiff has not pled 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, 167 L.Ed.2d 929 (2007). "Determining whether a complaint states a plausible claim for relief will ... be a context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Iqbal, 556 U.S. at 663-664, 129 S.Ct. 1937.
"In considering a Rule 12(b)(6) motion, we must be mindful that federal courts require notice pleading, as opposed to the heightened standard of fact pleading." Hellmann v. Kercher, 2008 U.S. Dist. LEXIS 54882, *4, 2008 WL 1969311, *3 (W.D.Pa. May 5, 2008) (Lancaster, J.). Federal Rule of Civil Procedure 8 "`requires only a short and plain statement of the claim showing that the pleader is entitled to relief,' in order to `give the defendant fair notice of what the ... claim is and the grounds on which it rests,'" Bell Atlantic Corp. v. Twombly, 127 S.Ct. at 1964, 127 S.Ct. 1955 (citing Conley v. Gibson, 355 U.S. 41, 47, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957)). However, even under this lower notice pleading standard, a plaintiff must do more than recite the elements of a cause of action, and then make a blanket assertion of an entitlement to relief under it. Hellmann, supra. Instead, a plaintiff must make a factual showing of his entitlement to relief by alleging sufficient facts that, when taken as true, suggest the required elements of a particular legal theory. Twombly, 127 S.Ct. at 1965. "[W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged — but it has not "shown" — "that the pleader is entitled to relief." Iqbal, supra, citing Fed.R.Civ.P. 8(a).
The failure-to-state-a-claim standard of Rule 12(b)(6) "streamlines litigation by dispensing with needless discovery and factfinding." Neitzke v. Williams, 490 U.S. 319, 326-27, 109 S.Ct. 1827, 104 L.Ed.2d 338 (1989). A court may dismiss a claim under Rule 12(b)(6) where there is a "dispositive
The alleged facts as set forth by Plaintiffs in the second amended complaint are as follows. Plaintiffs Kevin Wagner, Fraiser Etsy, and Tony Migliori were all Bucknell University students who resided in a fraternity house located at 64 University Avenue, Lewisburg, Union County, Pennsylvania at the time period in question.
The Bucknell Defendants. Defendant Bucknell University is a private, liberal arts university located in Lewisburg, Pennsylvania. Julie A. Holtzapple, James R. Middleton, Michael C. Griffiths, and Degg H. Stark are public safety officers. Jason D. Friedberg is employed as Bucknell's Chief of Police. Susan L. Lantz and Lewis A. Marrara, II are both Deans of Students. Amy A. Badal is an Assistant Dean of Students. Wayne A. Bromfield was General Counsel of Bucknell as of the date of the incident in question. Michael A. Smyer is the Provost. John C. Bravman is the President.
The County Defendants. Ernest R. Ritter, III is the Sheriff of Union County, Pennsylvania. Jeffrey A. Tice and Justin M. Rosbosch are Union County Deputy Sheriffs. Ryan E. King is a Montour County, Pennsylvania Deputy Sheriff. Defendants Union and Montour counties are located in north central Pennsylvania and maintain control over their respective Sheriff's Offices.
Plaintiffs allege that all of the named individual defendants were acting under color of state law and are sued in their respective personal capacities. Moreover, Plaintiffs allege that the Bucknell University defendants, although employed by a private employer, were acting under color of state law, a claim that the Bucknell Defendants, for the most part, do not dispute.
Taking the facts alleged in the complaint as true, the narrative that unfolds is as follows. On February 16, 2012, Defendants Holtzapple, Middleton, Griffiths, Stark, Ritter, Tice, Rosbosch and King entered the Kappa Sigma Alphi Phi fraternity house, where the three Plaintiffs resided, and set off the fire alarm. The residents of the building exited the building. Defendants used the "C-CURE Access Control System
Like most universities, Bucknell has a Student Handbook (hereinafter "the handbook"). Plaintiffs assert that the handbook
ECF No. 36 at 13-17
The motions to dismiss moved to dismiss all nine counts of the second amended complaint, and additionally, the County Defendants included a motion to strike. Each count and the motion to strike will be addressed in turn.
In order for plaintiffs to prevail under 42 U.S.C. § 1983, they must establish two elements: first, that the conduct complained of was committed by a person acting under color of state law; and second, that the conduct deprived the plaintiff of rights, privileges, or immunities secured by the Constitution or laws of the United States. See Kost v. Kozakiewicz, 1 F.3d 176, 184 (3d Cir.1993).
The County Defendants argue that Count I should be dismissed as Plaintiffs waived their Fourth Amendment protections based on their assent to governance by the Bucknell Student Handbook, and, additionally, that they are entitled to qualified immunity. ECF No. 49 at-14-17. The Bucknell Defendants assert the same two arguments, and, additionally, make a third argument of good faith reliance on the advice of counsel defense. ECF No. 51 at 11-20. The Bucknell Defendants are able to make the qualified immunity argument as they have acquiesced to the assertion that they acted under color of state law as to the Fourth Amendment claims
Plaintiffs argue that to survive a motion to dismiss, they must have pled only that a search was violative of their Constitutional rights, because there was no consent, no warrant, and no exception to the warrant requirement, i.e. neither probable cause nor exigent circumstances. Further, plaintiffs argue that the Bucknell Defendants are not entitled to qualified immunity because Fourth Amendment law is well settled and it was unreasonable to rely on legal advice that the search was allowable.
Each argument will be taken in turn. First, the assertion that Count I should be dismissed generally as not a constitutionally violative search, and second, that even if it was a constitutionally violative search, the Defendants should be immune from liability.
The Fourth Amendment provides "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." US. CONST. amend. IV.
"[T]he Fourth Amendment protects people, not places." Katz v. United States, 389 U.S. 347, 351, 88 S.Ct. 507, 511, 19 L.Ed.2d 576 (1967). "[W]hat he seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected." Id. "Wherever a man may be, he is entitled to know that he will remain free from unreasonable searches and seizures." Id. at 359, 88 S.Ct. 507. A search to which an individual consents meets Fourth Amendment requirements. See id. at 357, 88 S.Ct. 507.
Case law with regard to searches and seizures of dormitories has not developed in a universal manner, as the law surrounding the student-university relationship has changed considerably in a relatively short period of time. "The early period of American higher education, prior
Notably, in 1976, Chief Judge David P. Lay wrote for the United States Court of Appeals for the Eighth Circuit that "[t]he relationship between a university and a student is contractual in nature." Corso v. Creighton Univ., 731 F.2d 529, 531 (8th Cir.1984) citing, e.g., Williams v. Howard University, 528 F.2d 658, 660-61 (D.C.Cir.), cert. denied, 429 U.S. 850, 97 S.Ct. 138, 50 L.Ed.2d 123 (1976). "[T]he [] University Handbook for Students [] is the primary source of the terms governing the parties' contractual relationship." Id.
Contemporaneously with the decline of the in loco parentis doctrine and subsequent move to view the student-university relationship as one of contract, courts also began to hold that "a student who occupies a college dormitory room enjoys the protection of the Fourth Amendment." Piazzola v. Watkins, 442 F.2d 284, 289 (5th Cir.1971). Courts reasoned that "[t]he plaintiff's dormitory room is his house and home for all practical purposes, and he has the same interest in the privacy of this room as any adult has in the privacy of his home, dwelling, or lodging." Smyth v. Lubbers, 398 F.Supp. 777, 786 (W.D.Mich. 1975); but see, State v. Hunter, 831 P.2d 1033, 1036 (Utah Ct.App.1992) (holding that the right of privacy protected by the Fourth Amendment does not include freedom from reasonable inspection of a school-operated dormitory room by school officials as a reasonable exercise of the university's authority to maintain an educational environment.)
As Judge J. David Frazier of the Washington Superior Court explained,
State v. Houvener, 145 Wn.App. 408, 416, 186 P.3d 370, 373 (2008).
A long established exception to both the requirements of a warrant and probable cause is a search conducted pursuant to consent. See Schneckloth v. Bustamonte, 412 U.S. 218, 219, 93 S.Ct. 2041,
A recent case on the issue of consent is that of Medlock v. Trustees of Indiana University, 738 F.3d 867 (7 Cir.2013). The Medlock court, speaking through Judge Richard A. Posner stated:
Medlock v. Trustees of Indiana Univ., 738 F.3d 867, 869-74 (7th Cir.2013) (Posner, J.).
Here, like Medlock, Plaintiffs consented in advance to governance by the Bucknell handbook
Defendants, however, also need to be held to their agreement. Based on the facts alleged in the complaint, it appears the Bucknell and County Defendants did not comply with the entirety of the handbook. This is the point in which the facts alleged in the instant matter diverge from those of Medlock. In Medlock, the university complied with the terms of their handbook. Consequently, that court dismissed the action. The facts alleged in the underlying complaint indicate that Defendants did not comply with the terms of the handbook.
First, although it may be disputed as to whether or not the Sheriff's Officers are "police" within the contemplation of the Bucknell handbook, the handbook does not permit their entry either way. If they are deemed to be police officers, the handbook prohibits entry "by police without the occupant's permission or a legal search warrant." Accordingly, if the Sheriff's Officer defendants are "police" as contemplated by the handbook, a warrant was required. On the other hand, if the Sheriff's Officers are not "police," as the County Defendant's contend, for the purposes of the motion to dismiss, then the handbook is silent, at best, as to the permissibility of entry by Sheriff's Officers. It is not immediately clear from the handbook if Plaintiffs consented to entry by the Sheriff's Officers. It certainly does not explicitly condone entry by the Sheriff's Office. Accordingly, either way, there is no clear consent by plaintiffs as to the County Defendants
Second, the second amended complaint alleges that the occupants were locked out of their fraternity house for three hours, some in various states of undress, in the middle of winter, because the Defendants pulled the fire alarm to evacuate the building to conduct the search and prohibited the residents reentry. The Bucknell handbook states:
It is premature find that Defendants complied with the handbook as to this portion of the allegations. The second amended complaint does not allege a scenario with exigent circumstance.
Third, the second amended complaint does not allege facts that involve a crime having been committed in front of a public safety officer. Therefore it is not clear if the first sentence of the plain sight provision modifies the remainder of the paragraph or if it exists independently of the first sentence. Regardless, the second amended complaint alleges that the search involved areas past those in plain sight.
Fourth, a second plain sight provision leads the Court to deny dismissal for the same reason as the exigent circumstances provision. The second amended complaint does not allege that this situation was emergent.
This Court concludes that Defendants could have conducted the search in a manner that was consistent with the Bucknell handbook and avoided litigation. The second amended complaint alleges a certain overzealousness that resulted in a noncompliance with the handbook. For all of the
Our Supreme Court in Saucier v. Katz mandated a two-step analysis concerning qualified immunity: first, taken in the light most favorable to the party asserting the injury, do the facts alleged show the officer's conduct violated a constitutional right; and second, whether that right was clearly established. 533 U.S. 194, 201, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001). "The contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right." Id. at 202, 121 S.Ct. 2151. The Supreme Court held, however, that Saucier's "rigid order of battle" is not a mandatory requirement. Pearson v. Callahan, 555 U.S. 223, 235, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009). Lower courts can use their discretion to decide which of the two prongs to consider first. Id. at 818. The right to be secure in one's own home against unreasonable searches and seizures is a clearly established right. Payton v. New York, 445 U.S. 573, 586 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980).
In the matter at hand, all Defendants argue that they are entitled to qualified immunity because the Plaintiffs consented to the search via the handbook. Additionally, the Bucknell Defendants argue that they are entitled to qualified immunity because they relied on the advice of counsel.
As to the second prong of Saucier, this is a matter of law for the Court's determination. Every reasonable official understands that the clearly established law is that law enforcement needs a warrant or a valid exception to the warrant requirement (combined with probable cause) in order to seize property. The right to be secure in one's own home against unreasonable searches and seizures is a clearly established right. Payton v. New York, 445 U.S. 573, 586, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980). "Unreasonable searches or seizures conducted without any warrant at all are condemned by the plain language of the first clause of the [Fourth] Amendment." Id. at 585, 100 S.Ct. 1371. "It is a "basic principle of Fourth Amendment law" that searches and seizures inside a home without a warrant are presumptively unreasonable." Id. at 586, 100 S.Ct. 1371. (Internal citations omitted). Accordingly, the Court cannot hold as a matter of law at this juncture that the Defendants were entitled to qualified immunity.
The first prong of Saucier asking the facts alleged show the officer's conduct violated a constitutional right, is, as the words "facts alleged" indicates, a fact question that cannot be decided by the Court. First, consent is an issue for the jury. "Whether consent is voluntary under all the circumstances is a question of fact.... [that] must go to the [actfinder." We Buy, Inc. v. Town of Clarks town, 2006 WL 3016314, *3, 2006 U.S. Dist. LEXIS 76792, *9 (S.D.N.Y. Oct. 20, 2006) (Sand, J.) citing Schneckloth, supra. Consent must be "freely and voluntarily given." Id. citing Bumper v. North Carolina, 391 U.S. 543, 548, 88 S.Ct. 1788, 20 L Ed.2d 797 (1968). For the same fact question reasons, the issue of whether the Bucknell Defendants relied in good faith on counsel's advice also remains a question for the jury.
The Court concludes that it would be premature to dismiss Plaintiff's Fourth Amendment claims for all of the foregoing reasons. Accordingly, both the Bucknell Defendants and the County Defendants motions to dismiss are denied as to Count I.
Count II alleges First Amendment retaliation claim against the Bucknell Defendants only based on a letter sent by the Bucknell Defendants. The letter at issue is found attached to the second amended complaint as Exhibit 2. See ECF No. 36-2. The letter states:
The Bucknell Defendants argue that Count II should be dismissed because "Plaintiffs do not and cannot allege that the Bucknell Defendants or its current General Counsel acted under color of state law by sending a routine evidence preservation letter in response to a threatened lawsuit, nor could a person of ordinary firmness be deterred from pursuing this or any lawsuit, because of such a letter." ECF No. 51 at 20. In response, Plaintiffs argue that the letter was retaliatory as it was threatening and attempted to paint all of the Plaintiffs in a bad light. Plaintiffs also argue that the First Amendment claim is based on more than the letter. Plaintiffs do not explain in their briefs what other alleged factual basis the claim is further premised on, other than the letter. Accordingly, the Court can only proceed as to what has been alleged — here, that the letter forms the underlying factual basis for this count.
"A retaliation claim under 42 U.S.C. § 1983 must establish that the government responded to the plaintiff's constitutionally protected activity with conduct or speech that would chill or adversely
"Illustrating the observation that "not every [government] restriction is sufficient to chill the exercise of First Amendment rights," we have recognized a distinction between an adverse impact that is actionable, on the one hand, and a de minimis inconvenience, on the other." Balt. Sun Co., 437 F.3d at 416. "Rather, a § 1983 retaliation plaintiff must demonstrate that the defendant's actions had some adverse impact on the exercise of the plaintiff's constitutional rights." Suarez Corp. Indus. v. McGraw, 202 F.3d 676, 685 (4th Cir.2000), See Wicomico County, 999 F.2d at 785 ("In order to state a retaliation claim, Appellees are required to show that WCDC's actions adversely impacted these First Amendment rights."). "[W]e must measure the adverse impact against an objectively reasonable plaintiff." Balt. Sun Co., 437 F.3d at 419. "To amount to retaliation, the conduct must be "sufficient to deter a person of ordinary firmness from exercising his First Amendment rights."" Mun. Revenue Servs., Inc. v. McBlain, 347 Fed.Appx. 817, 824 (3d Cir. 2009) (unpublished) citing McKee v. Hart, 436 F.3d 165, 170 (3d Cir.2006).
"In a proximate vein, the Supreme Court has condoned limiting retaliation liability when the challenged government action, whether conduct or speech, is so pervasive, mundane, and universal in government operations that allowing a plaintiff to proceed on his retaliation claim would "plant the seed of a constitutional case" in "virtually every" interchange." Balt. Sun Co., 437 F.3d at 416, citing Connick v. Myers, 461 U.S. 138, 148-49, 103 S.Ct. 1684, 75 L.Ed.2d 708 (1983); see also id. at 143, 103 S.Ct. 1684 (holding that, in the government employment context, public employers can reprimand or punish employees for their speech when that speech does not touch on matters of public concern); Kirby v. City of Elizabeth City, 388 F.3d 440, 448-49 (4th Cir.2004); cf. Board of County Commissioners, Wabaunsee County, Kansas v. Umbehr, 518 U.S. 668, 675, 116 S.Ct. 2342, 135 L.Ed.2d 843 (1996) (noting that retaliation "may be justified [i.e., unactionable] when legitimate countervailing government interests are sufficiently strong"). "Thus, the Connick Court recognized that the retaliation cause of action must be administered to balance governmental and private interests so as not to impose liability in everyday, run-of-the-mill encounters." Balt. Sun Co., 437 F.3d at 416. "[A] public official's malicious intent, taken alone, cannot amount to a retaliatory response." Id. at 420. "The plaintiff in a retaliation case must challenge adverse conduct or speech." Id. citing Constantine, 411 F.3d at 500 (repeating that retaliation claims challenge government "conduct").
"Illustrating the second DiMeglio (DiMeglio v. Haines, 45 F.3d 790 (4th Cir.1995)) observation that not "every restriction [is] actionable, even if retaliatory,"
"Determining whether a plaintiff's First Amendment rights were adversely affected by retaliatory conduct is a fact intensive inquiry that focuses on the status of the speaker, the status of the retaliator, the relationship between the speaker and the retaliator, and the nature of the retaliatory acts." Suarez Corp. Indus., 202 F.3d at 686, See Thaddeus-X v. Blatter, 175 F.3d 378, 398 (6th Cir.1999) ("The definition of adverse action is not static across contexts.").
"In general, constitutional retaliation claims are analyzed under a three-part test." Mun. Revenue Servs., Inc. v. McBlain, 347 Fed.Appx. 817, 823 (3d Cir. Pa.2009) (unpublished) citing Eichenlaub v. Twp. of Indiana, 385 F.3d 274, 282 (3d Cir.2004). "Plaintiff must prove (1) that [it] engaged in constitutionally-protected activity; (2) that the government responded with retaliation; and (3) that the protected activity caused the retaliation." Id.
Even if we accept Plaintiff's tenuous assertion that Bucknell Defendants should be considered to be acting under color of state law in sending this letter, to characterize the letter as retaliatory is something of an overreaction. Nothing in that letter could be read to chill or adversely affect Plaintiffs rights to speech or access to the courts. See, e.g., Balt. Sun Co., 437 F.3d at 416. A similarly situated person of "ordinary firmness" would not be chilled by this routine correspondence from Bucknell's general counsel following notification of Plaintiffs intent to sue Bucknell. See Balt. Sun Co., 437 F.3d at 416.
For all of the foregoing reasons, Count II will be dismissed in its entirety.
Preliminarily, to the extent that Count III is a First Amendment claim, Plaintiffs voluntarily withdrew this claim as to the County Defendants; accordingly Count III will be dismissed as to these defendants. See ECF No. 59 at 5. Additionally, to the extent that Count III is a First Amendment claim as to the Bucknell Defendants, it is also dismissed as to the Bucknell Defendants, as the Court is dismissing the underlying First Amendment claim in Count II.
Both sets of Defendants argue that they are entitled to qualified immunity as to Count III insofar as it is a Fourth Amendment
Insofar as Count III is based on the First Amendment, it is dismissed. Insofar as Count III is based on the Fourth Amendment, it survives the instant motions to dismiss.
Likewise, to the extent that Count IV is a First Amendment claim, Plaintiffs voluntarily withdrew this claim as to the County Defendants; accordingly Count IV as a First Amendment claim will be dismissed as to these defendants. See ECF No. 59 at 5. Additionally, to the extent that Count IV is a First Amendment claim as to the Bucknell Defendants, it is also dismissed as to the Bucknell Defendants, as the Court is dismissing the underlying First Amendment claim in Count II.
Moving to the Fourth Amendment component of Count IV, however, the County Defendants argue that Plaintiffs did not make a prima facie case as they have not alleged deliberate indifference. The Bucknell Defendants assert the same premature argument that they are entitled to qualified immunity.
"The United States Supreme Court has recognized that municipal liability may be premised on a municipality's failure to train its employees if the municipality had a policy or custom of failing to train its employees and that the failure to train constitutes "deliberate indifference." Schuenemann v. United States, 2006 WL 408404, *2, 2006 U.S.App. LEXIS 4350 (3d Cir.2006) (unpublished) (quoting City of Canton v. Harris, 489 U.S. 378, 388-389, 109 S.Ct. 1197, 103 L.Ed.2d 412 (1989) ("Only where a municipality's failure to train its employee in a relevant respect evidences a `deliberate indifference' to the rights of its inhabitants can such a shortcoming be properly thought of as a city `policy or custom' that is actionable under § 1983.")).
"The identified training deficiency must, be "closely related" to the ultimate injury, i.e., the plaintiff "must prove that the deficiency in training actually caused the deliberate indifference of municipal officers." Id. "Establishing municipal liability on a failure to train claim under § 1983 is difficult." Kline v. Mansfield, 255 Fed.Appx. 624, 629 (3d Cir. 2007) (non-precedential) (internal citations omitted). A failure to train claim ordinarily requires a pattern of violations. See id. It is possible to maintain a failure to train claim without showing a pattern, but the burden on plaintiff in such a case is high. See id.
Chief Judge Christopher C. Conner, of this Court, recently described failure to train as follows,
Mills v. City of Harrisburg, 589 F.Supp.2d 544, 556 (M.D.Pa.2008) aff'd, 350 Fed. Appx. 770 (3d Cir.2009).
In light of the state of the law in this regard, the Plaintiffs are unpersuasive; they make sweeping, conclusory statements without factual support for this claim. For example, Plaintiffs assert that "for decades the Defendants knowingly permitted their employees and/or law enforcement officers in their employ to engage in conduct similar ..." Second Amended Complaint, ECF No. 36 at 42 ¶ 163. "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Iqbal, 556 U.S. at 678, 129 S.Ct. 1937. Plaintiffs must do more than recite the elements of a cause of action, and then make a blanket assertion of an entitlement to relief under it. Hellmann, supra. Consequently, because the pleadings are insufficient as to the Failure to Train claim, the motions to dismiss will be granted as to Count IV.
Again, preliminarily, to the extent that Count V is a First Amendment claim, Plaintiffs voluntarily withdrew this claim as to the County Defendants; accordingly Count V will be dismissed as to these defendants. See ECF No. 59 at 5. Additionally, to the extent that as Count V is a First Amendment claim as to the Bucknell Defendants, it is also dismissed as to the Bucknell Defendants, as the Court is dismissing the underlying First Amendment claim in Count II.
As to municipal liability premised on the Fourth Amendment violation, the County Defendants argued that there was no policy, practice or custom alleged. The Bucknell Defendants argued first that Bucknell is not a municipality, therefore the count should be dismissed as to them, as well. Then, after receipt of Plaintiffs opposing brief in which Plaintiffs point out that merely two years ago, in this federal district, the Court held that a Monell claim could be brought against Bucknell and its policymakers, the Bucknell Defendants modified their argument to echo that of the County Defendants. See, Dempsey, infra.
Monell v. Dep't of Soc. Servs., held that a municipality could be sued if an official government policy or custom caused a constitutional violation. 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). As this Court has previous stated as to Bucknell defendants generally,
Dempsey v. Bucknell Univ., No. 4:11-CV-1679, 2012 WL 1569826, at *10 (M.D.Pa. May 3, 2012) (Kane, J.).
In their complaint, Plaintiffs have alleged that officials with final decision making authority ratified the search and seizure of Plaintiffs residence/property. These allegations contained in Count V are sufficient to survive Defendants motions to dismiss.
Count VI of the Second Amended Complaint, asserts that the Plaintiffs rights under the Pennsylvania Constitution were violated by the individual defendants and requests declaratory and equitable relief along with attorney's fees and costs. ECF NO. 36 at 45-46. As an initial matter, Plaintiffs concurred with the County Defendants by agreeing that Count VI should be dismissed as to the County Defendants. ECF No. 59 at 18. Accordingly, Count VI will be dismissed as to the individual County Defendants.
The individual Bucknell defendants contend that Count VI should be dismissed as moot as none of the Plaintiffs currently reside in Bucknell owned housing as they have all graduated from the university. ECF No. 51 at 26. Additionally, the Bucknell defendants assert that Plaintiffs are precluded from recovering attorney's fees and costs from a claim arising under Article I, Section 8 of the Pennsylvania Constitution. Id. In response, Plaintiffs argued that "the Bucknell Defendants continue to use the terms of the Student Handbook to continue to harm the Plaintiffs by refusing to expunge the relevant disciplinary records." ECF No. 58 at 20.
"Pennsylvania law does not include a statutory equivalent to 42 U.S.C. § 1983, which provides a cause of action for damages because of a federal constitutional violation." O'Hara v. Hanley, 2009 WL 2043490, at *9 (W.D.Pa. July 8, 2009) (Fischer, J.). "The prevailing view is that Pennsylvania does not recognize a private right of action for damages in a suit alleging violation of the Pennsylvania Constitution." Gary v. Braddock Cemetery, 517 F.3d 195,
It is clear that the Commonwealth does not allow plaintiffs to pursue a damages claim for violations of its constitution. Both sets of Defendants cited to a case that referenced specifically that attorney's fees and costs are also not available for a violation of the Pennsylvania Constitution. See Sherwood v. Beard, No. 2012 WL 3679559, at *13 (W.D.Pa. July 27, 2012) (Kelly, M.J.) (stating "Plaintiff seeks monetary damages: nominal damages and compensatory damages in the amount of $350,000 and punitive damages in the amount of $350,000 against each Defendant, both jointly and severally, including all costs of litigation, attorney fees, delay damages and interest. Under Pennsylvania law, he cannot pursue these claims for monetary damages arising out of alleged violations of the Pennsylvania constitution.") (report and recommendation adopted, 2012 WL 3686755 (W.D.Pa. Aug. 24, 2012), vacated on other grounds (Oct. 19, 2012) and report and recommendation adopted as modified, 2013 WL 1687834 (W.D.Pa. Apr. 18, 2013) (Cercone, J.).
Plaintiffs cited to no authority for the proposition that attorney's fees and costs are permitted as part of a declaratory and equitable relief claim pursuant to the Pennsylvania Constitution. Accordingly, this Court follows the lead of Judge David Cercone in the Western District, and the guidance of Judge Michael M. Baylson in the Eastern District, and will not permit attorney's fees and costs here as "the undersigned does not believe district court judges should create a private right of action until and unless a legislative body has clearly allowed it, or an appellate court has issued a holding to that effect." Farrell, 2006 WL 166519, at *3.
Finally, plaintiffs' demand for declaratory and equitable relief against the individual Bucknell defendants fails as a matter of law. Article I § 8 of the Pennsylvania Constitution states "The people shall be secure in their persons, houses, papers and possessions from unreasonable searches and seizures, and no warrant to search any place or to seize any person or things shall issue without describing them as nearly as may be, nor without probable cause, supported by oath or affirmation subscribed to by the affiant." Plaintiffs assertion that Count VI was brought in order to have their Bucknell student records expunged simply makes no sense. There is no injunctive, declaratory or equitable relief the undersigned could possible order or direct Bucknell to do or not do that would secure these particular plaintiffs rights under this particular article and section of the Pennsylvania constitution. Directing Bucknell to expunge plaintiffs files does nothing to secure these plaintiffs from unreasonable searches and seizures. The Court concludes that Count VI is moot as a matter of law. "[A] case is moot when the issues presented are no longer `live' or the parties lack a legally cognizable interest in the outcome." Soliman v. U.S. ex rel. INS, 296 F.3d 1237, 1242 (11th Cir.2002) citing Powell v. McCormack, 395 U.S. 486, 496, 89 S.Ct. 1944, 1951, 23 L.Ed.2d 491 (1969).
Accordingly, Count VI will be dismissed in its entirety.
The Bucknell Defendants argue that Plaintiffs did not allege a breach of
To prove a claim for breach of contract, Plaintiffs must prove the following elements: (1) the existence of a contract, including its essential terms; (2) a breach of a duty imposed by the contract; and (3) resulting damages. See Lackner v. Glosser, 892 A.2d 21, 30 (Pa.Super.Ct.2006). Pennsylvania law has clarified that "the relationship between a private educational institution and an enrolled student is contractual in nature; therefore, a student can bring a cause of action against said institution for breach of contract where the institution ignores or violates portions of the written contract." Swartley v. Hoffner, 734 A.2d 915, 919 (Pa.Super.Ct.1999). This contract is embodied by the written guidelines, policies, and procedures as contained in the written materials distributed to the student over the course of their enrollment in the institution, including the student handbook. See id.
The Court agrees with Plaintiffs, for the same reasons set forth above in the search and seizure portion of this memorandum opinion, that Plaintiffs have plead sufficient facts and specified provisions of the handbook that are alleged to be a breach of contract claim against the Bucknell Defendants. Accordingly, Count VII survives the motion to dismiss.
The Bucknell Defendants argue, in a mere two sentences, that Plaintiffs have not sufficiently pleaded an underlying cause of action, therefore no vicarious liability claim exists. The Court disagrees.
"An employer is vicariously liable for the wrongful acts of an employee if that act was committed during the course of and within the scope of employment." Phillips v. Lock, 86 A.3d 906, 913 (Pa.Super.Ct.2014). Plaintiffs have sufficiently plead this claim; accordingly, Count VIII survives the motion to dismiss.
Both sets of Defendants argue that there are no allegations of malice, and therefore, this claim cannot survive post Twombly and Iqbal, supra. The Bucknell Defendants also argue that there is no underlying unlawful act, an issue that has been rejected in this memorandum opinion, at least at this stage of the game.
"In Pennsylvania, "to state a cause of action for civil conspiracy, the following elements are required: (1) a combination of two or more persons acting with a common purpose to do an unlawful act or to do a lawful act by unlawful means or for an unlawful purpose; (2) an overt act done in pursuance of the common purpose; and (3) actual legal damage."" Gen. Refractories Co. v. Fireman's Fund Ins. Co., 337 F.3d 297, 313 (3d Cir.2003), citing Strickland v. Univ. of Scranton, 700 A.2d 979, 987-8 (1997) (citation and internal quotations marks omitted) (cited in Allegheny General Hosp. v. Philip Morris, Inc., 228 F.3d 429, 446 (3d Cir.2000)). Additionally, the Pennsylvania Supreme Court stated that there must have been malicious intent.
Thompson Coal Co. v. Pike Coal Co., 488 Pa. 198, 211, 412 A.2d 466, 472 (1979)
Plaintiffs' complaint, together with the arguments advanced in their papers, are legally insufficient. Plaintiffs recited no alleged factual support for this claim; the complaint merely states the elements of civil conspiracy. The briefs set forth nothing further. "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Iqbal, 556 U.S. at 678, 129 S.Ct. 1937. Plaintiffs must do more than recite the elements of a cause of action, and then make a blanket assertion of an entitlement to relief under it. Hellmann, supra.
Accordingly, because Plaintiffs merely recited the elements of civil conspiracy under Pennsylvania law, with no support for their allegations, Count IX will be dismissed.
As part of their Motion to Dismiss, the county defendants included a Motion to Strike the Introduction to the Second Amended Complaint. The request to strike the introduction will be granted.
Rule 8 of the Federal Rules of Civil Procedure limits plaintiffs to a "short and plain statement of the claim." Additionally, "[t]he court may strike from a pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter. The court may act: (1) on its own; or (2) on motion made by a party either before responding to the pleading or, if a response is not allowed, within 21 days after being served with the pleading." Fed.R.Civ.P. 12.
Fed.R.Civ.P. 12(f). "Immaterial" matter is that which has no essential or important relationship to the claim for relief. Del. Health Care, Inc. v. MCD Holding Co., 893 F.Supp. 1279 (D.Del. 1995). "Impertinent" matter consists of statements that do not pertain, and are not necessary, to the issues in question. Cech v. Crescent Hills Coal Co., 2002 WL 31002883, No. 96-2185, at *28 (W.D.Pa. 2002). A "scandalous" matter or pleading is one that casts a derogatory light on someone, uses repulsive language, or detracts from the dignity of the court. Carone v. Whalen, 121 F.R.D. 231, 232 (M.D.Pa.1988).
Plaintiffs introduction, which will be struck, reads as follows:
ECF No. 36 p 2-3.
The entirety of the introduction section is argumentative, impertinent and wholly irrelevant.
The Court will also act, sua sponte, to strike additional paragraphs from the complaint, pursuant to Fed. R.Civ.P. 12(f)(1) and (2) as follows:
ECF No. 36 p 4 ¶ 8.
ECF No. 36 p 4 fn 1.
The criticisms of the Court's prior decision detract from the dignity of the Court and are impertinent. If plaintiffs' counsel disagrees with the Court's prior decision, the appropriate avenue is to request reconsideration through motions practice, not to parade witless observations in an amended pleading.
Finally, the class allegations are struck from the second amended complaint as Plaintiffs never filed a motion to certify the class.
Defendants motions will be granted in part and denied in part. Count I survives the motions. Count II is dismissed in its entirety. Count III is dismissed insofar as it is based on the First Amendment, it survives insofar as it is based on the Fourth Amendment. Count IV is dismissed in its entirety. Count V is dismissed insofar as it is based on the First Amendment, it survives insofar as it is based on the Fourth Amendment. Count VI is dismissed in its entirety. Count VII survives the motions. Count VIII survives the motions. Count IX is dismissed in its entirety. The motion to strike is granted in its entirety; the Plaintiffs are directed to strike the other portions of the complaint as described above.
Plaintiffs will be directed to file a third amended complaint. An Order in accordance with this Memorandum will follow.
In accordance with the memorandum issued this date,
The Court notes that it is impossible to find, based on the allegation in the complaint that Bucknell was able to lock the residents out of the residence using the C-CURE Access Control System, that it was a private residence not controlled by Bucknell. Bucknell must have maintained ownership and control over the residence in order to be able to use any sort of system that could lock the residents out of the building.
