Condron v. Pennsylvania State Police et al
Filing
21
MEMORANDUM and ORDER granting in part and denying in part 12 dfts Foley, Wilson Bonney and Whittaker's Motion to Dismiss- GRANTED re pltf's claims against Linda Bonney; GRANTED re pltf's claims in Count I against Foley Wilson and Lt. Whittaker; GRANTED re pltf's claims in Count II against Foley and Wilson (predating 12/8/08; AND granting in part and denying in part Dfts PA State Police, Marrone, Hand, Evanchick and Maleski's 13 motion to dismiss - GRANTED re PA State Police, Marrone and Hand; GRANTED re Count I against Evanchick and Maleski; and GRANTED re Count II against Evanchick and Maleski predated 12/8/08. Signed by Honorable James M. Munley on 1/30/12 (sm, )
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
MARY ELLEN CONDRON,
Plaintiff
:
No. 3:10cv2506
:
:
(Judge Munley)
v.
:
:
PENNSYLVANIA STATE POLICE,
:
CAPTAIN ROBERT EVANCHICK,
:
MAXINE JOHNSON, CORPORAL
:
MALESKI, LINDA BONNEY,
:
LIEUTENANT WHITTAKER, JOSEPH :
FOLEY, AMBER WILSON, MICHAEL :
MARRONE and DARBY HAND,
:
Defendants
:
::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::
MEMORANDUM
Before the court are Defendants Captain Robert Evanchick, Corporal
Maleski, Linda Bonney, Lieutenant Whittaker, Joseph Foley, Amber
Wilson, Michael Marrone, Darby Hand and the Pennsylvania State Police’s
motions to dismiss plaintiff’s Amended Complaint.1 (Docs. 12, 13). The
parties have briefed the issues and these motions are ripe for disposition.
1
Defendant Maxine Johnson is not included in the motions to dismiss
presently before the court. Defendant Johnson is not included in the briefs
in support of those motions to dismiss. She is not included in Plaintiff Mary
Ellen Condron’s briefs in opposition to the motions to dismiss. Although
Defendant Johnson is mentioned in one of defendants’ three reply briefs,
the issue of whether her dismissal is warranted is nonetheless insufficiently
briefed and not before the court. Therefore, this Memorandum and the
Order that follows will not address Plaintiff Condron’s claims with respect to
Defendant Maxine Johnson.
For the following reasons, defendants’ motions will be granted in part and
denied in part.
Background
Plaintiff Mary Ellen Condron (hereinafter “plaintiff”) filed an Amended
Complaint against Defendants Captain Robert Evanchick, Maxine
Johnson, Corporal Maleski, Linda Bonney, Lieutenant Whittaker, Joseph
Foley, Amber Wilson, Michael Marrone, Darby Hand and the Pennsylvania
State Police (collectively “defendants”) on March 8, 2011. (See Doc. 10,
Am. Compl.). Plaintiff alleges various claims under the Americans with
Disabilities Act and 42 U.S.C. § 1983. These claims arise out of an
employment dispute and encompass events spanning from 2006 to 2009.
During the time period in question, plaintiff worked for Defendant the
Pennsylvania State Police (hereinafter the “PSP”) as a police
communications officer (hereinafter “PCO”). (Id. ¶¶ 7, 12). Plaintiff has
diabetes. (Id. ¶ 13). Plaintiff received positive performance reviews with
no disciplinary record during the first few years of her employment. (Id. ¶¶
14-15). Plaintiff went on parental leave from August 9, 2005 to February 9,
2006. (Id. ¶¶ 15-16).
Plaintiff sought additional parental leave some time after February
2
24, 2006, and, although the PSP initially denied her request, she was
ultimately granted three months of additional leave from March 20, 2006 to
June 19, 2006. (Id. ¶¶ 17-20). After March 20, 2006, plaintiff alleges that
Sergeant Richard Krewitz requested that petitioner submit a list of her
medications. (Id. ¶ 21). Plaintiff suspects that Defendant Amber Wilson
(hereinafter “Wilson”), who worked as a PCO at the PSP, and Defendant
Joseph Foley (hereinafter “Foley”), who worked as a PCO at the PSP and
served as the steward for petitioner’s union, somehow encouraged
Krewitz’s request. (Id. ¶¶ 10, 22).
On May 12, 2006, while plaintiff was on her extended parental leave,
Defendant Corporal Maleski (hereinafter “Maleski”) informed her that she
must sign a release prior to returning to work. (Id. ¶ 23). Plaintiff alleges
that Maleski hurried her, denying her the necessary time to review the
document. (Id. ¶ 24). Plaintiff later learned that the release was for her
medical records. (Id. ¶ 25). Plaintiff believes that Maleski deliberately
misrepresented the nature of the release. (Id. ¶ 26). Additionally, prior to
her return, Defendant Captain Robert Evanchick (hereinafter “Evanchick”)
ordered that plaintiff receive medical clearance to work alone at her desk.
(Id. ¶ 27).
3
Plaintiff’s medical records were subsequently given to Defendants
Michael Marrone (hereinafter “Marrone”) and Darby Hand (hereinafter
“Hand”), who are both physicians and medical directors for the PSP. (Id.
¶¶ 11, 28). Marrone and Hand opined that plaintiff should only work if
accompanied by another PCO or some other PSP personnel during her
shift. (Id. ¶ 28). Plaintiff contends this opinion was made at the behest of
Evanchick, Maleski and “others.” (Id.)
Upon return to work on June 20, 2006, plaintiff was placed on the
accommodated schedule suggested by Hand and Marrone. (Id. ¶¶ 29-30).
Defendants allegedly implemented this accommodated schedule because
plaintiff’s personal physician had not provided clearance for her to work
alone. (Id. ¶ 31). Although plaintiff eventually obtained a release from her
physician, plaintiff remained on the accommodated work schedule and was
not returned to the “normal” scheduling status enjoyed by other PSP
employees. (Id. ¶¶ 32-33).
Plaintiff learned from a union representative that other PCOs, plaintiff
suspects to be Wilson and Foley, filed grievances against her on the basis
that she received preferential treatment. (Id. ¶ 35). In late June or early
July 2006, plaintiff alleges that Wilson and Foley posted demeaning
4
cartoons portraying plaintiff as a “crybaby.” (Id. ¶ 36). Plaintiff filed a
formal report with Sergeant Richard Krewitz alleging harassment based on
her diabetes. (Id. ¶¶ 37-38). An internal investigation concluded that the
cartoons were harassing, but, despite plaintiff’s suspicions, there could be
no way of knowing who created them.2
On June 29, 2006, plaintiff filed a grievance as to why she was
placed on an accommodated schedule. (Id. ¶ 34). Under the
accommodated schedule, plaintiff could not work overtime and was
ineligible for shift differential pay. (Id. ¶ 42). A hearing was scheduled on
September 13, 2006 for plaintiff’s grievance as well as the grievances filed
by other PCOs against plaintiff, but the hearing was never held. (Id. ¶ 44).
Plaintiff received a letter dated September 26, 2006 from Evanchick stating
that her scheduling accommodation could not be continued and that her
position would be eliminated effective October 6, 2006. (Id. ¶ 46). The
September 26, 2006 letter gave plaintiff until October 3, 2006 to decide
2
Plaintiff also pleads that she filed an additional internal informal
complaint of harassment and discrimination, but those conducting the
investigation did not pursue it further because of uncertainty over who
authored the cartoon. (Doc. 10, Am. Compl. ¶ 40). Plaintiff also filed a
formal complaint with the Pennsylvania Human Relations Commission.
(Id.)
5
whether to take a lower paying clerical position, a PCO job far away from
her home, retire, resign, or attempt to go out on disability. (Id. ¶ 47).
Plaintiff met with union officials to discuss contesting the elimination of her
position. (Id. ¶¶ 48-49). Plaintiff did not make a decision as requested in
Evanchick’s letter, and after a series of successive extensions in time to
make a decision, plaintiff was placed on an extended period of unpaid
leave. (Id. ¶¶ 50-55). Through these extensions and subsequent
placement on unpaid leave status, plaintiff argues that defendants
somehow “manipulated work rules” in a scheme to force her out of her job.3
(Id. ¶ 55).
Plaintiff filed two grievances after being placed on unpaid leave
status, the first on October 23, 2006 and the second on November 27,
2006. (Id. ¶¶ 53, 56). A hearing was held on January 23, 2007.4 (Id. ¶
57). In April 2007, plaintiff was placed on an indefinite leave of absence
until the grievance situation was resolved. (Id. ¶ 58). In June 2007,
3
Plaintiff’s description of the alleged scheme to force her out of her
job in paragraph 55 of the Amended Complaint can, at best, be described
as ambiguous.
4
The Amended Complaint does not state the outcome of the January
23, 2007 hearing, only that “defendants maintained their bogus positions at
a step one hearing on January 23, 2007, and Plaintiff appealed their
determination on both grievances.” (Doc. 10, Am. Compl. ¶ 57).
6
plaintiff alleges that her “eliminated” position was filled by someone else.
(Id. ¶ 59).
On October 25, 2007, plaintiff and the PSP agreed that plaintiff could
return to work with back pay and full benefits if she was cleared by an
independent medical doctor who specializes in diabetes. (Id. ¶¶ 61-62).
After some initial difficulty in agreeing on a doctor, plaintiff went to Dr.
Robert Gabbay of the Hershey Medical Center, who cleared her to work as
a PCO on October 1, 2008. (Id. ¶¶ 68-69).
Dr. Gabbay offered to review other medical files sent to him because
plaintiff’s file was incomplete. (Id. ¶ 70). Plaintiff alleges that Defendants
Evanchick, Linda Bonney (hereinafter “Bonney”) and Maxine Johnson used
this offer as a pretext to threaten termination if plaintiff did not send her
complete medical file to Dr. Gabbay. (Id. at 71). Nevertheless, plaintiff
complied and was reinstated without restrictions on January 5, 2009. (Id.
¶¶ 72-73).
Plaintiff alleges that, despite her reinstatement, some issues
presented in the grievances were left unresolved, and that “her coworkers,
including Wilson and Foley, continued to create an overtly and covertly
hostile atmosphere, and plaintiff continued to be scrutinized excessively
7
and held to a different standard than similarly-situated employees who had
not engaged in protected activities.” (Id. ¶ 74).
Plaintiff underwent surgery in June 2009 and did not return to work
until September 2009. (Id. ¶ 77). Defendant Lieutenant Whittaker
(hereinafter “Whittaker”) commenced disciplinary actions against plaintiff
for leave abuse. (Id. ¶ 78). Plaintiff maintains that she did not abuse her
leave because her back leave from her two year absence was not restored.
(Id.) Plaintiff pleads that Whittaker also threatened her with a criminal
investigation and demanded that she change her hours or quit her job as
an emergency call center employee with Lackawanna County. (Id. ¶¶ 8081). Whittaker also commenced disciplinary action against plaintiff for
tardiness, allegedly at the behest of Wilson. (Id. ¶ 79). Furthermore,
plaintiff alleges that Foley participated in precipitating Whittaker’s demand
that plaintiff change her hours at the Lackawanna County call center by
“feeding the information to Whittaker for him to use against her.” (Id. ¶ 82).
Plaintiff was notified that a pre-disciplinary conference regarding her
use of leave, tardiness and alleged conflict of interest was scheduled for
December 8, 2009. (Id. ¶ 83). Prior to this conference plaintiff resigned.
(Id. ¶ 84). Plaintiff alleges that, as her supervisors, Maleski and Evanchick
8
were aware of and acquiesced in all matters relating to plaintiff’s past
employment disputes with the PSP. (Id. ¶ 85).
Plaintiff filed a Complaint on December 8, 2010, (Doc. 1), and an
Amended Complaint on March 8, 2011, (Doc. 10). In her Amended
Complaint, plaintiff alleges claims under the Americans with Disabilities Act
as well as the Civil Rights Act, 42 U.S.C. § 1983. Defendants Foley,
Wilson, Bonney and Whittaker filed a motion to dismiss plaintiff’s Amended
Complaint. (Doc. 12). Similarly, Defendants the PSP, Evanchick, Maleski,
Marrone and Hand filed a separate motion to dismiss plaintiff’s Amended
Complaint. (Doc. 13). The issues were briefed and this matter is ripe for
disposition.
Jurisdiction
Plaintiff asserts claims under the Americans with Disabilities Act, 42
U.S.C. § 12101, et seq., and 42 U.S.C. § 1983. The court has jurisdiction
pursuant to 28 U.S.C. § 1331, which provides that “[t]he district court shall
have original jurisdiction of all civil actions arising under the Constitution,
laws, or treaties of the United States.”
Legal Standard
Defendant brings this motion to dismiss pursuant to Federal Rules of
9
Civil Procedure 12(b)(6).5 When a 12(b)(6) motion is filed, the sufficiency
of the allegations in the complaint are tested. All well-pleaded allegations
of the complaint must be viewed as true and in the light most favorable to
the non-movant to determine whether, “‘under any reasonable reading of
the pleadings, the plaintiff may be entitled to relief.’” Colburn v. Upper
Darby Twp., 838 F.2d 663, 665-66 (3d Cir. 1988) (quoting Estate of Bailey
by Oare v. Cnty. of York, 768 F.2d 503, 506 (3d Cir. 1985)). The plaintiff
must describe “‘enough facts to raise a reasonable expectation that
discovery will reveal evidence of’ [each] necessary element” of the claims
alleged in the complaint. Phillips v. Cnty. of Allegheny, 515 F.3d 224, 234
(3d Cir. 2008) (quoting Bell Atl. Corp. v. Twombly, 500 U.S. 544, 556
(2007)). Moreover, the plaintiff must allege facts that “justify moving the
case beyond the pleadings to the next stage of litigation.” Id. at 234-35. In
evaluating the sufficiency of a complaint the court may also consider
“matters of public record, orders, exhibits attached to the complaint and
5
Although both motions to dismiss claim on their face to be brought
pursuant to Rule 12(b)(3) (see Docs. 12, 13), the court will nonetheless
view this as a typographical error and interpret these motions as being
brought under Rule 12(b)(6). Both of the supporting briefs cite Rule
12(b)(6). (See Docs. 14, 15). Furthermore, Rule 12(b)(3) (improper
venue) makes little sense in light of defendants’ arguments.
10
items appearing in the record of the case.” Oshiver v. Levin, Fishbein,
Sedran & Berman, 38 F.3d 1380, 1384 n.2 (3d Cir. 1994) (citations
omitted). The court does not have to accept legal conclusions or
unwarranted factual inferences. See Curay-Cramer v. Ursuline Acad. of
Wilmington, Del., Inc., 450 F.3d 130, 133 (3d Cir. 2006) (citing Morse v.
Lower Merion Sch. Dist., 132 F.3d 902, 906 (3d Cir. 1997)).
The federal rules require only that plaintiff provide “‘a short and plain
statement of the claim showing that the pleader is entitled to relief,’” a
standard which “does not require ‘detailed factual allegations,’” but a
plaintiff must make “‘a showing, rather than a blanket assertion, of
entitlement to relief’ that rises ‘above the speculative level.’” McTernan v.
City of York, 564 F.3d 636, 646 (3d Cir. 2009) (quoting Twombly, 550 U.S.
at 555-56). The “complaint must contain sufficient factual matter, accepted
as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v.
Iqbal, 556 U.S. 662, 129 S. Ct. 1937, 1949 (2009) (quoting Twombly, 550
U.S. at 570). Such “facial plausibility” exists “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. (citing Twombly,
550 U.S. at 556). “[T]he factual detail in a complaint [cannot be] so
11
undeveloped that it does not provide a defendant the type of notice of
claim which is contemplated by Rule 8.” Phillips, 515 F.3d at 232 (citation
omitted).
The Supreme Court has counseled that a court examining a motion
to dismiss should, “begin by identifying pleadings that, because they are no
more than conclusions, are not entitled to the assumption of truth.” Iqbal,
129 S. Ct. at 1950. Next the court should make a context-specific inquiry
into the “factual allegations in [the] complaint to determine if they plausibly
suggest an entitlement to relief.” Id. at 1951.
Discussion
Nine defendants seek dismissal from the case.6 Defendants attack
plaintiff’s Amended Complaint on the grounds that it fails to state a claim
for which relief can be granted. Defendants more specifically contend that
the claims in Counts I and II contain obvious defects as they are either time
barred by the statute of limitations or insufficient under the pleading
standards of the Federal Rules of Civil Procedure. The court will examine
each count identified in the Amended Complaint to determine whether
6
As is noted above, Defendants omitted Defendant Maxine Johnson
from both of the motions to dismiss presently before the court.
12
plaintiff sufficiently states a claim for which relief can be granted.
A. Claims Under the Americans With Disabilities Act
In Count I of the Amended Complaint, plaintiff alleges violations of
the Americans with Disabilities Act (hereinafter “ADA”) generally against all
defendants. (Doc. 10, Am. Compl. ¶¶ 86-91). In support of this claim,
plaintiff lists several instances in which defendants allegedly discriminated
against her because of her medical condition. Although plaintiff is vague
with respect to the specific legal theory on which her ADA claims rest, the
enumerated facts essentially amount to claims of hostile work environment,
disparate impact and retaliation under Title I of the ADA. See 42 U.S.C. §§
12111-12117.
Title I of the ADA imposes liability on covered entities for
discriminating against a qualified individual with disabilities. See 42 U.S.C.
§ 12112(a). A “covered entity” is defined for the purposes of Title I of the
ADA as “an employer, employment agency, labor organization, or joint
labor-management committee.” 42 U.S.C. § 12111(2). It is well
established that Title I of the ADA does not impose liability on individual
employees as individuals are not included in the definition of covered
entity. O’Donnell v. Pa. Dep’t of Corrs., 790 F. Supp. 2d 289, 308 (M.D.
13
Pa. 2011) (citing Koslow v. Pennsylvania, 302 F.3d 161, 178 (3d Cir.
2002)).
In Count I of the Amended Complaint, plaintiff appears to assert
employment discrimination claims under the ADA against the PSP as her
employer as well as all of the other defendants in their individual
capacities. The court will dismiss plaintiff’s ADA claims against
Defendants Evanchick, Maleski, Bonney, Whittaker, Foley, Wilson,
Marrone and Hand as it is evident that defendants cannot be liable under
the ADA in their individual capacities.
Defendants further assert that the ADA claims against the PSP
should be dismissed because the PSP, as an agency of the
Commonwealth of Pennsylvania, is entitled to sovereign immunity under
the Eleventh Amendment. Plaintiff does not rebut this contention in her
brief in opposition, and simply states that “Plaintiff included the PSP as a
defendant for her claims under the ADA under which the PSP is her
employer.” (Doc. 17, Br. in Opp’n to Mot. to Dismiss at 13). The court
agrees with defendants; plaintiff’s ADA claims against the PSP are barred
by the Eleventh Amendment.
The Eleventh Amendment provides that “[t]he Judicial power of the
14
United States shall not be construed to extend to any suit in law or equity,
commenced or prosecuted against one of the United States by Citizens of
another State, or by Citizens or Subjects of any Foreign State.” U.S.
CONST. AMEND XI. This prohibition of suits against states applies “to suits
by citizens against their own States.” Board of Trs. of the Univ. of Ala. v.
Garrett, 531 U.S. 356, 363 (2001). Eleventh Amendment sovereign
immunity protects unconsenting states and state agencies, like the PSP,
from suit brought in federal court. See Capogrosso v. Supreme Court of
N.J., 588 F.3d 180, 185 (3d Cir. 2009). Such immunity is not absolute, but
“there are only three narrowly circumscribed exceptions to Eleventh
Amendment immunity: (1) abrogation by an Act of Congress, (2) waiver by
state consent to suit; and (3) suits against individual state officials for
prospective relief to remedy an ongoing violation of federal law.” M.A. ex
rel. E.S. v. State-Operated Sch. Dist., 344 F.3d 335, 345 (3d Cir. 2003)
(citing MCI Telecomm. Corp. v. Bell Atl. Pa., 271 F.3d 491, 503 (3d Cir.
2001)).
Plaintiff’s ADA claims against the PSP do not fall under the first
exception as it is settled law that Congress did not abrogate Eleventh
Amendment immunity with respect to claims arising under Title I of the
15
ADA. See Garrett, 531 U.S. at 374; see also Banks v. Court of Common
Pleas FJD, 342 F. App’x 818, 820-21 (3d Cir. 2009) (“suits seeking money
damages against the state for an alleged failure to comply with Title I of the
ADA are barred by the Eleventh Amendment”). In Board of Trustees of the
University of Alabama v. Garrett, the Supreme Court found that the
congressional record does not show that Congress intended Title I of the
ADA to remedy violations of the Fourteenth Amendment. 531 U.S. at 368.
Thus, the Supreme Court held that Title I of the ADA was not within
Congress’s Fourteenth Amendment power; making the express abrogation
provision unconstitutional and ineffective with respect to Title I claims. See
id. at 374.
Plaintiff similarly cannot maintain her ADA claims against the PSP
under the second exception to Eleventh Amendment immunity because
Pennsylvania has not waived its sovereign immunity with respect to claims
made under Title I of the ADA. See 42 PA. CONS. STAT. § 8521(b); Lavia v.
Pa. Dep’t of Corrs., 224 F.3d 190, 195-96 (3d Cir. 2000).
Finally, plaintiff does not meet the third exception, which allows for
suits against individual state officials for prospective relief. See M.A. ex
rel. E.S., 344 F.3d at 345. Plaintiff not only neglects to identify defendants
16
she wishes to join in an official capacity, but plaintiff also fails to specifically
request any form of injunctive or prospective relief. Therefore, the court
will dismiss Count I of the Amended Complaint with respect to the PSP.
As an agency of the Commonwealth of Pennsylvania, the PSP is entitled to
Eleventh Amendment immunity and plaintiff’s ADA claims do not fit any
exception that would allow this claim to survive.
B. Claims of Retaliation in Violation of the First Amendment
In Count II of the Amended Complaint, plaintiff alleges violations of
the United States Constitution against all defendants. (See Doc. 10, Am.
Compl. ¶¶ 92-96). She asserts the constitutional claim pursuant to the
Civil Rights Act, 42 U.S.C. § 1983 (hereinafter “Section 1983"). Plaintiff
essentially alleges that defendants “subjected Plaintiff to discriminatory
treatment because she engaged in protected speech and activities by
speaking out on matters of public concern and petitioning her government
of her grievances, in violation of the First Amendment . . . .” (Id.)
The Third Circuit has adopted a three-step test to evaluate a public
employee’s claim of retaliation for engaging in activity protected under the
First Amendment. See Hill v. City of Scranton, 411 F.3d 118, 125 (3d Cir.
2005). First, the employee must show that his activity is protected. Id.
17
(citing Pickering v. Bd. of Educ., 391 U.S. 563 (1968)). “Second, the
employee must show that the protected activity ‘was a substantial factor in
the alleged retaliatory action.’” Id. (quoting Mt. Healthy City Sch. Dist. Bd.
of Educ. v. Doyle, 429 U.S. 274, 287 (1977)). “Third, the employer may
defeat the employee’s claim by demonstrating that the same adverse
action would have taken place in the absence of the protected conduct.”
Id. Section 1983 claims are subject to a two-year statute of limitations in
Pennsylvania.7
Although the statute of limitations is listed as an affirmative defense
under Federal Rule of Civil Procedure 8(c), District Courts may
nonetheless dismiss claims as time barred at the motion to dismiss stage if
the plaintiff’s failure to comply with the limitations period is apparent from
the face of the complaint, the exhibits attached to the complaint and
matters of public record. See Datto v. Harrison, 664 F. Supp. 2d 472, 482
7
Courts apply analogous state law limitations periods to Section
1983 claims “if it is not inconsistent with federal law or policy to do so.”
Wilson v. Garcia, 471 U.S. 261, 267 (1985). Pennsylvania law requires
that the plaintiff commence her action within two years of her injury. See
42 PA. CONS. STAT. ANN. § 5524(7) (establishing a two year statute of
limitations for “[a]ny other action or proceeding to recover damages for
injury to person or property which is founded on negligent, intentional, or
otherwise tortious conduct . . . .”).
18
(E.D. Pa. 2009) (citing Oshiver, 38 F.3d at 1384 n.1, n.2). With respect to
applying statutes of limitations, Pennsylvania courts generally find that the
statute of limitations begins to run when the plaintiff’s cause of action
accrues. See Oshiver, 38 F.3d at 1385 (citing Cada v. Baxter Healthcare
Corp., 920 F.3d 446, 450 (7th Cir. 1990)).
In the instant case, plaintiff filed her Complaint on December 8, 2010.
Defendants contend that all allegations relating to incidents occurring prior
to December 8, 2008 are barred by the two year statute of limitations
applied to Section 1983 claims. Specifically, defendants assert that the
claims against Defendants Foley, Wilson, Bonney, Evanchick, Maleski,
Marrone and Hand are time barred by the statute of limitations. (See Doc.
12, Mot. to Dismiss ¶¶ 5, 6, 10; Doc. 13, Mot. to Dismiss ¶¶ 14, 17, 20).
Although plaintiff maintains that most of her claims are timely, she
nonetheless asserts that the continuing violations doctrine should apply to
causes of action accruing prior to December 8, 2008.
The continuing violations doctrine provides “an ‘equitable exception
to the timely filing requirement.’” Cowell v. Palmer Twp., 263 F.3d 286,
292 (3d Cir. 2001) (quoting West v. Phila. Elec. Co., 45 F.3d 744, 754 (3d
Cir. 1995)). Under this doctrine, “‘when a defendant’s conduct is part of a
19
continuing practice, an action is timely so long as the last act evidencing
the continuing practice falls within the limitations period; in such an
instance, the court will grant relief for the earlier related acts that would
otherwise be time barred.’” Id. (quoting Brenner v. Local 514, United Bhd.
of Carpenters & Joiners of Am., 927 F.2d 1283, 1295 (3d Cir. 1991)). To fit
within the doctrine, a defendant’s actions must be “‘more than the
occurrence of isolated or sporadic acts.’” Id. (quoting West, 45 F.3d at
755).
Courts employ three factors to determine whether the acts
complained of qualify under the continuing violations doctrine:
(1) subject matter–whether the violations constitute the same
type of discrimination, tending to connect them in a continuing
violation;
(2) frequency–whether the acts are recurring or more in the
nature of isolated incidents; and
(3) degree of permanence–whether the act had a degree of
permanence which should trigger the plaintiff’s awareness of
and duty to assert his/her rights and whether the consequences
of the act would continue even in the absence of continuing
intent to discriminate.
Id.8 A plaintiff’s awareness of the injury at the time it occurred is relevant to
8
Under the second factor, plaintiff must establish two points. First,
she “‘must demonstrate that at least one act occurred within the filing
period: The crucial question is whether any present violation exists. Next
the plaintiff must establish that the [alleged wrong] is more than the
20
whether the continuing violations theory applies, and courts have found
that the “theory does not apply when plaintiffs are aware of the injury at the
time it occurred.” Morganroth & Morganroth v. Norris, McLaughlin &
Marcus, P.C., 331 F.3d 406, 417 n.6 (3d Cir. 2003) (citing Kichline v.
Consol. Rail Corp., 800 F.2d 360 (3d Cir. 1986)). Once a plaintiff
establishes that the doctrine applies and that one violation occurred within
the period established by the statute of limitations, a plaintiff may then
“offer evidence of, and recover for, the entire continuing violation.” West,
45 F.3d at 755.
The court will assess the well pleaded facts in the Amended
Complaint as they relate to each defendant identified in both of the motions
to dismiss. The Court will first address whether the claims made against
these defendants in Count II of the Amended Complaint are timely under
the applicable statute of limitations. If these claims are timely, or if the
continuing violations doctrine should apply, then the court will examine the
facts and determine whether they support a claim for unlawful retaliation in
violation of the First Amendment.
occurrence of isolated or sporadic acts.’” Heilman v. T.W. Ponessa &
Assoc., No. 08-1667, 2009 WL 82707, at *4 (3d Cir. Jan. 14, 2009)
(quoting West, 45 F.3d at 754-55).
21
I. Defendants Joseph Foley and Amber Wilson
Plaintiff’s Amended Complaint contains several allegations with
respect to Defendants Joseph Foley and Amber Wilson. Foley and Wilson
were plaintiff’s co-workers and fellow communications officers with the
state police. (Doc. 10, Am. Compl. ¶ 10). Foley was the steward for
plaintiff’s union. (Id. ¶ 22). Plaintiff asserts that Wilson and Foley had a
“personal animus against plaintiff.” (Id.) Plaintiff alleges that in the year
2006, Foley and Wilson somehow convinced Sergeant Richard Krewitz to
scrutinize plaintiff’s medical condition. (Id.) Also in 2006, Foley and
Wilson allegedly filed grievances against plaintiff on the basis that she
received preferential treatment, and they posted demeaning cartoons of
plaintiff as a “crybaby.” (Id. ¶ 35-36). In 2009, Foley and Wilson are
alleged to have created “an overtly and covertly hostile atmosphere,” which
resulted in plaintiff’s subjugation to excessive scrutiny. (Id. ¶ 74). Some
time after September 2009, Wilson is alleged to have fabricated
attendance reports to create disciplinary problems for plaintiff. (Id. ¶ 79).
In late 2009, Foley is alleged to have informed plaintiff’s supervisor that
plaintiff had a conflict with her longtime second job as a 911 operator for
Lackawanna County. (Id. ¶ 82).
22
Many of the allegations made against Foley and Wilson occurred well
before December 8, 2008. Plaintiff contends that all of the allegations,
spanning from 2006 to 2009, are either within the limitations period or
permissive under the continuing violations doctrine. The court disagrees.
Even if it is assumed that plaintiff satisfies the first factor of the three
factor test identified in Cowell, plaintiff’s description of the events occurring
prior to December 8, 2008 (the “crybaby” cartoon, filing grievances,
informing supervisors of medical conditions and etc.) fails to satisfy the
second and third factors. With regard to the second factor, the court is not
convinced that the events described are anything more than separate and
sporadic incidents among coworkers that dislike each other.
With respect to the third factor, the Amended Complaint states that
plaintiff was aware of any possible claims against Foley and Wilson before
December 8, 2008. This is evident through the numerous grievances
plaintiff filed against her fellow PCOs, the harassment claims plaintiff
initiated with the PHRC and the assistance plaintiff sought from union
officials. The continuing violations doctrine does not apply because
plaintiff was aware of the injury at the time, or very near to, the time that
they occurred. See Morganroth, 331 F.3d at 417 n.6. As plaintiff was
23
aware of the injuries within a short time of their occurrence, applying the
continuing violations doctrine here would relieve plaintiff of her duty to
promptly bring claims; this alone warrants the rejection of her continuing
violations theory. See Cowell, 263 F.3d at 295 (noting that “the continuing
violations doctrine should not provide a means for relieving plaintiffs from
their duty to exercise reasonable diligence in pursuing their claims”).
Therefore, the court will only examine the sufficiency of the 2009 incidents
because all of the allegations pertaining to Wilson and Foley prior to
December 8, 2008 are barred by the statute of limitations and do not
qualify under the continuing violations doctrine.
Plaintiff alleges that after she returned from leave on January 6,
2009, Foley and Wilson created a hostile environment because she had a
pending grievance that had not been resolved. (Doc. 10, Am. Compl. ¶
74). Specifically, plaintiff alleges that Wilson fabricated attendance records
indicating that plaintiff was late to work, (Id. ¶ 79), and Foley informed
plaintiff’s supervisor of a doubtful conflict with plaintiff’s longtime second
job with Lackawanna County, (Id. ¶ 80, 82). Defendants contend that
these allegations fail to state a claim for retaliation in violation of the First
Amendment. While not addressing the 2009 allegations regarding Foley
24
and Wilson in their brief in support of their motion to dismiss, the
defendants subsequently contend in their rely brief that the alleged
retaliatory incidents are de minimus and insufficiently retaliatory.9 The
court disagrees.
The Third Circuit Court of Appeals has held that a government
employee’s allegation of First Amendment retaliation is actionable even
when the alleged retaliatory act is relatively minor. See O’Connor v. City of
Newark, 440 F.3d 125, 127-28 (3d Cir. 2006). In fact, the Third Circuit has
found that “[e]ven ‘an act of retaliation as trivial as failing to hold a birthday
party for a public employee,’ if ‘intended to punish her for exercising her
free speech rights,’ may be actionable if under the circumstances it would
be sufficient to ‘deter a person of ordinary firmness’ from exercising his or
her First Amendment rights.” Id at 128 (quoting Suppan v. Dadonna, 203
F.3d 228, 234-35 (3d Cir. 2000)). Thus the deterrence threshold for First
9
Defendants do not clearly state that it is their position that the
alleged retaliatory actions are de minimus; however, the court views
defendants arguments as an assertion that the alleged actions are de
minimus. For instance, defendants characterize plaintiff’s claims against
Foley and Wilson as follows: “While these alleged acts of Wilson and Foley
do not put them in the running for being awarded ‘co-workers of the year
award’ this Court can and should rule that they are insufficient as a matter
of law to allow the action to go forward against them.” (Doc. 19, Rely Br. in
Supp. of Defs. Foley & Wilson at 5).
25
Amendment retaliation claims is very low.
Aside from the already discussed statute of limitations defense,
defendants only challenge the allegations against Foley and Wilson on the
grounds that they are de minimus. In light of the standard mentioned
above, the court finds that Foley and Wilson’s alleged misconduct was not
de minimus. Wilson’s conduct of fabricating attendance records and
Foley’s act of passing along information to supervisors with the intent of
creating a conflict with a longstanding second job meet the minimal level of
deterrence needed to maintain a claim for First Amendment retaliation.
Defendants do not challenge that discovery may reveal the other
elements of a First Amendment retaliation claim. If plaintiff’s allegations
are taken as true, it is reasonable to infer that discovery will reveal that
plaintiff was engaged in a constitutionally protected speech during the
grievance process and that Foley and Wilson retaliated against her
because she engaged in this protected activity. Therefore, the motion to
dismiss the claims contained in Count II against Foley and Wilson will be
granted with respect to the claims arising from incidents prior to December
8, 2008. The motion will be denied with respect to claims contained in
Count II of the Amended Complaint and arising from incidents occurring
26
after December 8, 2008.
ii. Defendant Linda Bonney
Defendants contend that plaintiff’s allegations against Defendant
Linda Bonney are barred by the two year statute of limitations. Defendants
further contend that, even if the allegations against Bonney are not time
barred, they fail to state a claim under the pleading requirements of the
Federal Rules of Civil Procedure. Plaintiff does not address the issue of
whether the claims against Bonney are barred by the statute of limitations,
and with respect to the sufficiency of the pleadings, plaintiff maintains that
they are sufficient, despite conceding that they are general in nature.
The Amended Complaint contains few allegations with respect to
Bonney. She is alleged to be a former PSP employee. (Doc. 10, Am.
Compl. ¶ 9). Plaintiff, without reference to any dates or specific instances,
alleges that Bonney, in conjunction with other PSP employees, engaged in
the practice of “manipulating work rules.” (Id. ¶ 55). Plaintiff also alleges
that Bonney was involved in a November 2008 plan to terminate plaintiff if
she did not provide Dr. Gabbay with medical records. (Id. ¶ 71).
The court agrees with defendant and the claims against Defendant
Bonney will be dismissed from this action. Plaintiff alleges no specific
27
instances with respect to Bonney that occurred within the two year statute
of limitations. As is discussed above, at least one event needs to be
alleged within the limitations period to invoke the continuing violations
theory. See Ozoroski v. Maue, No. 11-2042, 2011 WL 6939090, at*1-2 (3d
Cir. Dec. 12, 2011) (citing Cowell, 263 F.3d at 292).
Even if plaintiff’s claims against Bonney were not time barred, they
would nonetheless fail under Rule 8 due to their lack of specificity. Plaintiff
concedes that the assertions against Bonney are general in nature. (Doc.
16, Br. in Opp’n to Mot. to Dismiss at 13). The court finds that aside from
blanket assertions regarding the “manipulation of work rules” it is unclear
what retaliatory action Bonney is alleged to have taken, if any. Therefore,
the motion to dismiss the claims in Count II with respect to Bonney will be
granted.
iii. Defendant Lieutenant Whittaker
Defendants contend that Defendant Lieutenant Whittaker should be
dismissed from the case on the grounds that plaintiff has failed to state a
claim for which relief can be granted. More specifically, defendants argue
that plaintiff has failed to state a claim against Whittaker because the
28
alleged retaliatory actions are de minimus.10 The court disagrees and will
deny defendants’ motion on this point.
Whittaker is alleged to have been plaintiff’s supervisor at the PSP
when plaintiff returned to work in September 2009, and plaintiff contends
that Whittaker contributed to creating the hostile work environment that
existed in conjunction with her pending grievance. (Doc. 10, Am. Compl.
¶¶ 8, 74, 78). Whittaker is specifically alleged to have initiated disciplinary
action against plaintiff in September 2009 for leave abuse, (Id. ¶ 78),
disciplined plaintiff based upon false tardiness reports, (Id. ¶ 79),
demanded that plaintiff quit her Lackawana County job or alter her hours,
(Id. ¶ 80), and suggested that plaintiff may be subject to a criminal
investigation, (Id. ¶ 81).
Initiating formal disciplinary procedures against an employee is
sufficient to meet the minimal level of deterrence needed for a public
Again, defendants do not clearly state that it is their position that
the alleged retaliatory actions are de minimus. Nevertheless, the court will
interpret defendants’ argument as asserting that the retaliation alleged was
de minimus as the essence of defendants’ argument is that the “amended
complaint fails against Whittaker because the write ups concerning her
sick leave abuse cannot be considered an ‘adverse action’ given that
plaintiff could have exonerated herself through the hearing procedure, but
refused to do so.” (Doc. 14, Br. in Supp. of Mot. to Dismiss at 12).
10
29
employee to maintain a First Amendment retaliation. See O’Connor, 440
F.3d at 128 (noting that the First Amendment retaliation claim survives
even if the act of retaliation is trivial, such as failing to hold a birthday
party). Whittaker’s initiation of formal disciplinary charges, coupled with his
threat (as a Lieutenant in the Pennsylvania State Police) of a criminal
investigation, certainly meets the minimal level of deterrence needed to
maintain a First Amendment retaliation claim.
Similar to their argument with respect to Defendants Foley and
Wilson, defendants do not challenge that the allegations against Whittaker,
if true, otherwise raise a reasonable expectation that discovery will reveal
evidence pertaining to the other elements of a First Amendment retaliation
claim. For instance, defendants do not contest that it is otherwise
reasonable to infer that discovery will reveal that plaintiff was engaged in a
constitutionally protected speech during the grievance process and that
Whittaker initiated disciplinary action and threatened a criminal
investigation because of that speech. Therefore, the motion to dismiss the
claims contained in Count II against Whittaker will be denied.
iv. Defendants Michael Marrone and Darby Hand
Defendants assert that Defendants Hand and Marrone should be
30
dismissed from this action as the claims made against them are barred by
the two year statute of limitations. Hand and Marrone are only mentioned
in two paragraphs of the Amended Complaint. They are first identified as
physicians and the medical directors of the PSP. (Doc. 10, Am. Compl. ¶
11). It is later alleged that Hand and Marrone received plaintiff’s medical
records sometime during the summer of 2006 and then, “at the urging of
the PSP (Evanchik, Maleski, and others), and despite their duty to exercise
their own independent judgment, rendered opinions that plaintiff could only
return to work under the restriction of having another PCO or other PSP
personnel on her shift with her full time.” (Id. ¶ 28).
Plaintiff admits that the claims relating to Hand and Marrone only
relate to events occurring in 2006. (Doc. 17, Br. in Opp’n to Mot. to
Dismiss at 11). Plaintiff nonetheless contends that Hand and Marrone are
liable under the continuing violations doctrine. Plaintiff supports her
continuing violations doctrine argument as follows:
“in the context of the rest of her claims, and the relationship of
the medical matters to those claims, plaintiff believes that her
claims against these defendants, the wrongfulness of which
was only revealed and discovered over time, and not
determinable at this point in any case, are sufficiently alleged.
Clearly, the actions and conduct of Marrone and hand [sic]
were part of the overall pattern of work rule manipulations that
have caused plaintiff the injuries of which she complains.”
31
(Id.)
The court disagrees. It is apparent from the face of the Amended
Complaint that all of the alleged incidents involving Hand and Marrone
occurred in 2006, well outside of the two year limitations period. Although
plaintiff alleges that Marrone and Hand’s conduct was a part of a wider
pattern of “work rule manipulations,” plaintiff does not allege that Marrone
or Hand behaved unlawfully at any point within the limitations period.
Neglecting to plead that the defendant engaged in unlawful activity within
the limitations period is, in itself, a fatal defect in a continuing violations
theory claim. See Ozoroski, 2011 WL 6939090, at *1-2 (citing Cowell, 263
F.3d at 292). Additionally, the Amended Complaint is devoid of any
indication that Hand and Marrone’s involvement in plaintiff’s employment
dispute was anything other than isolated. Furthermore, plaintiff was aware,
or should have been aware, of Hand and Marrone’s actions in 2006.
Although plaintiff contends that their wrongfulness was revealed over time,
plaintiff nonetheless establishes that she was aware of the alleged injury
that Hand and Marrone caused immediately upon her return to work on
June 20, 2006. Plaintiff challenged the accommodated work schedule with
her supervisors both informally and with formal grievances. Thus, plaintiff
32
was aware of the alleged injury and her right to seek recourse long before
she filed suit.
Therefore, the court will dismiss the claims contained in Count II with
respect to Hand and Marrone. Plaintiff’s logic is opaque and her argument
regarding the continuing violations doctrine is far from compelling. The
cause of action against these defendants began to run in 2006, and to hold
otherwise would offend the policy rationale of statutes of limitations. See
Cowell, 263 F.3d at 295.
v. Defendants Captain Robert Evanchick and Corporal
Maleski
Defendants contend that plaintiff’s allegations against Defendants
Captain Robert Evanchick and Corporal Maleski are time barred by the two
year statute of limitations. Defendants maintain that even if plaintiff’s
claims are not time barred plaintiff has failed to state a claim for which
relief can be granted with respect to Evanchick and Maleski.
In the Amended Complaint, plaintiff alleges that Evanchick and
Maleski were plaintiff’s supervisors in the chain of command. (Doc. 10,
Am. Compl. ¶ 8). Both Evanchick and Maleski were involved in the
incident regarding the medical release plaintiff was required to sign upon
returning to work in June 2006, and they were involved in a supervisory
33
capacity in placing plaintiff on an accommodated work schedule. (Id. ¶¶
23-29). During the fall of 2006, Evanchick sent plaintiff several letters
stating that she must decide to either resign, retire, transfer to another
post, or go on disability. (Id. ¶¶ 46-52). Both Evanchick and Maleski,
similar to other PSP employees, are vaguely alleged to have manipulated
work rules. (Id. at ¶ 55). Finally, plaintiff alleges that Evanchick and
Maleski were supervisors in the chain of command and that they knew of
and acquiesced in the unconstitutional conduct of their subordinates. (Id. ¶
85).
Contrary to plaintiff’s contention that the claims against Evanchick
and Maleski are timely, the court finds that all of the allegations made
against Evanchick and Maleski occurred outside of the two year statute of
limitations, with the exception of the allegations that they acquiesced in
Whittaker, Foley and Wilson’s allegedly unconstitutional conduct.11
11
Although there is no date associated with the allegation that
Evanchick and Maleski, in conjunction with Defendants Bonney and
Johnson, somehow “manipulated work rules,” the court nonetheless notes
that this allegation is nestled in the Amended Complaint between
allegations involving a November 17, 2006 letter and a November 27, 2006
grievance. (Doc. 10, Am. Compl. ¶¶ 54-56). Regardless of whether the
alleged manipulation of work rules occurred in 2006, as the court suspects,
or at another time, such a vague allegation is nothing more than a blanket
assertion of wrongdoing. Such claims in themselves are not enough to
34
Although plaintiff does not specifically argue in her brief that the continuing
violations doctrine should apply, the court nonetheless notes its
inapplicability. Plaintiff’s allegations against Maleski and Evanchick
involving their role in her initial accommodation from 2006-07 and their role
as supervisors in her disciplinary proceedings in 2009 amount to separate
events that do not qualify under the continuing violations doctrine. See
Cowell, 263 F.3d at 292.
The court further notes that plaintiff was aware of any alleged injury
caused by Evanchick and Maleski and that she was not diligent in bringing
her claims. In 2006 and 2007, Plaintiff filed numerous grievances and took
formal action in protest of being placed on an accommodated schedule.
Plaintiff also reached an agreement with the PSP and her supervisors that
allowed her to return to work in January 2009. Thus, applying the
continuing violations doctrine would offend the policy underpinnings of the
statute of limitations. See id. at 295. Therefore, the only claim against
meet the pleading requirements of the Federal Rules of Civil Procedure.
See McTernan, 564 F.3d at 646 (citing Twomby, 550 U.S. at 555-56).
Thus, the court will not consider the allegations contained in paragraph 55
of the Amended Complaint when determining the plausibility of the claims
against Evanchick, Maleski or any other defendant who may be implicated
by such a broad indictment. See Curay-Cramer, 450 F.3d at 133 (noting
that the court need not accept unwarranted factual inferences).
35
Maleski and Evanchick that is not time barred is that they supervised and
approved of Whittaker, Foley and Wilson’s allegedly unconstitutional
conduct in 2009.
Defendants do not address this specific claim as it relates to
plaintiff’s First Amendment retaliation claim in either the brief in support of
the motion to dismiss or their reply brief. Defendants focus their failure to
state a claim argument on the allegations involving Maleski and Evanchick
that allegedly occurred prior to December 8, 2008. Plaintiff contends that
Evanchick and Maleski can be liable under Section 1983 as supervisors if
they acquiesced to their subordinates committing a constitutional violation.
The court agrees with plaintiff. The First Amendment retaliation claims
against Evanchick and Maleski with respect to their acquiescence of
Whittaker, Foley and Wilson’s alleged constitutional violations will not be
dismissed.
When it comes to supervisor liability in Section 1983 cases, it is well
established that respondeat superior is not a viable theory. See Monell v.
Dep’t of Soc. Servs., 436 U.S. 658, 691 (1978). Rather the Supreme Court
has held that supervisor liability can only be imposed in Section 1983
claims if that supervisor played an “affirmative part” in the complained-of
36
misconduct. Iqbal, 129 S. Ct. at 1949 (“In a § 1983 suit or a Bivens
action–where masters do not answer for the torts of their servants–the
term ‘supervisory liability’ is a misnomer. Absent vicarious liability, each
Government official, his or her title notwithstanding, is only liable for his or
her own misconduct.”). To set forth an action for supervisory liability under
Section 1983, a “plaintiff must demonstrate that the supervising officials:
(1) personally participated in violating a person’s rights; (2) directed others
to violate a person’s rights; or (3) had knowledge of and acquiesced in a
subordinate’s violation of a person’s rights.” Simonton v. Tennis, 437 F.
App’x 60, 64 (3d Cir. 2011) (citing Robinson v. City of Pittsburgh, 120 F.3d
1286, 1293 (3d Cir. 1997), abrogated on other grounds by Burlington N. &
Santa Fe Ry. Co. v. White, 548 U.S. 53, 76-78 (2006)).
In this case, plaintiff alleges that Evanchick and Maleski, as
supervisors, knew of and acquiesced to the constitutional violations of their
subordinates. This includes Whittaker, Foley, and Wilson’s activities in
2009, which, as is discussed above, may prove through discovery to be
constitutional violations. Therefore, if plaintiff’s factual allegations
pertaining to Maleski and Evanchick are accepted as true, they state a
claim that is plausible on its face. Thus, the court will not dismiss the claim
37
of supervisor liability against Evanchick and Maleski with regard to their
acquiescence and knowledge of Whittaker, Foley and Wilson’s alleged
constitutional violations, but the court will dismiss the other allegations
made against Evanchick and Maleski as untimely.
vi. Defendant the Pennsylvania State Police
Although plaintiff alleges Section 1983 claims against all defendants
in her Amended Complaint, she later clarified that “[t]he PSP is not
included as a defendant for [sic] purposes of her Section § [sic] 1983
claims.” (Doc. 17, Br. in Opp’n to Mot. to Dismiss at 13). The court will
treat this response as a withdrawal of the Section 1983 claims against the
PSP, and the court will dismiss the claims in Count II of the Amended
Complaint with respect to the PSP.
Conclusion
For the above-stated reasons, both of defendants’ motions to dismiss
will be granted in part and denied in part. An appropriate order follows.
38
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
MARY ELLEN CONDRON,
Plaintiff
:
No. 3:10cv2506
:
:
(Judge Munley)
v.
:
:
PENNSYLVANIA STATE POLICE,
:
CAPTAIN ROBERT EVANCHICK,
:
MAXINE JOHNSON, CORPORAL
:
MALESKI, LINDA BONNEY,
:
LIEUTENANT WHITTAKER, JOSEPH :
FOLEY, AMBER WILSON, MICHAEL :
MARRONE and DARBY HAND,
:
Defendants
:
::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::
ORDER
AND NOW, to wit, this 30th day of January 2012, it is hereby
ORDERED:
1. Defendants Joseph Foley, Amber Wilson, Linda Bonney and
Lieutenant Whittaker’s motion to dismiss (Doc. 12) is GRANTED IN
PART and DENIED IN PART as follows:
a. The motion is GRANTED with respect to plaintiff’s claims
against Linda Bonney. The Clerk of the Court is directed to
dismiss Linda Bonney from this case;
b. The motion is GRANTED with respect to plaintiff’s claims in
Count I of the Amended Complaint against Joseph Foley,
Amber Wilson and Lieutenant Whittaker;
b. The motion is GRANTED with respect to plaintiff’s claims in
Count II of the Amended Complaint against Joseph Foley and
39
Amber Wilson, but only to the extent that those claims arise
from incidents predating December 8, 2008;
c. The motion is DENIED in all other respects.
2. Defendants the Pennsylvania State Police, Michael Marrone,
Darby Hand, Captain Robert Evanchick and Corporal Maleski’s
motion to dismiss (Doc. 13) is GRANTED IN PART and DENIED IN
PART as follows:
a. The motion is GRANTED with respect to plaintiff’s claims
against the Pennsylvania State Police, Michael Marrone and
Darby Hand. The Clerk of the Court is directed to dismiss the
Pennsylvania State Police, Michael Marrone and Darby Hand
from this case;
b. The motion is GRANTED with respect to plaintiff’s claims in
Count I of the Amended Complaint against Captain Robert
Evanchick and Corporal Maleski;
c. The motion is GRANTED with respect to plaintiff’s claims in
Count II of the Amended Complaint against Captain Robert
Evanchick and Corporal Maleski, but only to the extent that
those claims arise from incidents predating December 8, 2008;
d. The motion is DENIED in all other respects.
BY THE COURT:
s/ James M. Munley
JUDGE JAMES M. MUNLEY
United States District Court
40
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