LOCKETT et al v. PENNSYLVANIA DEPARTMENT OF CORRECTIONS et al
Filing
27
ORDER granting 19 Motion to Dismiss Amended Complaint. It is hereby further ordered that count I of the amended complaint which asserts a claim under 42 U.S.C. § 1983 for a violation of the Fourteenth Amendment is dismissed without leave to amend and count II which asserts a claim under the Pennsylvania Whistleblower Law, 43 Pa. Stat. § 1421 et seq., is dismissed without prejudice. The clerk shall mark this case closed. Signed by Judge Joy Flowers Conti on 7/13/2012. (smc )
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
MELVIN S. LOCKETT, JANIS
NIEMIEC and MARTIN A. KOVACS,
Plaintiffs,
v.
PENNSYLVANIA DEPARTMENT OF
CORRECTIONS, JOHN WETZEL,
RANDY BRITTON and MARDI
VINCENT
) CIVIL ACTION NO. 11-1314
)
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Defendants.
MEMORANDUM OPINION AND ORDER
CONTI, District Judge.
I.
Introduction
On March 30, 2012, pursuant to Federal Rule of Civil Procedure 12(b)(6), defendants
Pennsylvania Department of Corrections (“DOC”), Secretary of Corrections John Wetzel
(“Wetzel”), Deputy Secretary of Corrections Randy Britton (“Britton”), and Deputy Secretary of
Corrections Mardi Vincent (“Vincent” and together with the DOC, Wetzel, and Britton,
collectively “Defendants”) filed a motion to dismiss (ECF No. 19) the amended complaint filed
by Melvin S. Lockett (“Lockett”), Janis Niemiec (“Niemiec”), and Martin A. Kovacs (“Kovacs”
and together with Lockett and Niemiec, collectively “Plaintiffs”). Plaintiffs filed the amended
complaint on March 9, 2012 (ECF No. 17). The amended complaint contains two claims: 1) a
federal claim under 42 U.S.C. § 1983 for violation of Plaintiffs’ Fourteenth Amendment rights;
and 2) a Pennsylvania state law claim for violation of The Pennsylvania Whistleblower Law, 43
PA. STAT. § 1421 et seq (“Pennsylvania Whistleblower Law”). For the reasons set forth below,
the court will grant Defendants’ motion to dismiss with respect to the § 1983 claim and dismiss
the remaining claim without prejudice.
II.
Factual and procedural background
On May 2, 2011, Plaintiffs were terminated from their respective positions with the DOC
at the State Correctional Institution in Pittsburgh, Pennsylvania (“SCI-Pittsburgh”). (ECF No. 17
¶¶ 38, 41). Wetzel publically announced Plaintiffs’ dismissal, claiming that the new managerial
team would bring SCI-Pittsburgh in a “new direction.” (Id. ¶ 49). Plaintiffs were informed that
an investigation dating back to August 2008 led to their dismissal. (Id. ¶ 42).
On October 14, 2011, Plaintiffs filed a complaint in this court against Defendants. On
February 24, 2012, this court granted Defendant’s motion to dismiss the complaint with leave to
amend. On March 9, 2012, Plaintiffs filed an amended complaint. The amended complaint
alleges that Defendants violated Plaintiffs’ Fourteenth Amendment right to procedural due
process and their right to be free of retaliatory action under the Pennsylvania Whistleblower
Law. As relief, Plaintiffs request compensatory and punitive damages for loss of income,
earning capacity, and employment benefits. Plaintiffs also ask this court to grant an injunction to
return Plaintiffs to their former positions at SCI-Pittsburgh.
In September 2010, Niemiec contacted SCI-Pittsburgh security personnel about concerns
with the large number of sex offender requests for protective custody. (Id. ¶ 12). Eventually, the
Office of Special Investigation and Intelligence (“OSII”) conducted an investigation into inmate
sexual abuse by corrections officers. (Id.). Plaintiffs claim to be entirely cooperative with OSII
during this investigation and to have investigated and alleviated the problem themselves to the
best of their abilities. (Id. ¶¶ 15-31). Despite the unusual number of requests for protective
custody, no inmate filed an official grievance concerning sexual abuse from a corrections officer
2
during this time. (Id. ¶ 24). In April 2011, Deputy Secretary Shirley Moore-Smeal of the
Corrections Central Office directed Lockett to suspend seven officers at SCI-Pittsburgh. (Id. ¶
29). The dismissal of these officers and the allegations of inmate abuse were highly publicized.
(Id. ¶ 49). Allegedly, these suspensions greatly angered the Pennsylvania State Correctional
Officers Association (“PSCOA”). (Id. ¶ 33).
Plaintiffs allege that the public nature of their dismissals created a false impression in the
public that they either allowed the alleged sexual abuse of inmates to continue or refused to take
actions to stop it. (Id. ¶ 53). Shortly after the announcement of their terminations, “ranking
Democrats on the state House and Senate Judiciary Committees” were quoted in a Pittsburgh
Tribune Review article as saying “that suggests a significant level of wrongdoing.” (Id. ¶ 54).
Plaintiffs allege that the investigation into inmate abuse was only a smokescreen for the true
reason to fire Plaintiffs. (Id. ¶ 33). The dismissals were an attempt to appease the PSCOA due
to the PSCOA’s support of Pennsylvania Governor Tom Corbett. (Id.). The PSCOA allegedly
disliked Plaintiffs for their roles in opposing grievance demands filed by the PSCOA. Plaintiffs
point out that they were not dismissed for performance reasons because the incoming transitional
team that replaced them all remarked how well-run SCI-Pittsburgh was. (Id. ¶ 59). Plaintiffs
note that “in the end, they were never given an opportunity to explain their actions.” (Id. ¶ 53).
On March 30, 2012, Defendants filed a motion to dismiss the amended complaint on the
basis that the factual allegations in the amended complaint are insufficient to state a plausible
claim for relief. Defendants argue in seeking to dismiss the federal claim that any public
statements made during the termination did not stigmatize Plaintiffs. Specifically, Defendants
assert there were no allegations made in the amended complaint from which the court could
plausibly infer that at the time of termination public statements were made by Defendants
3
concerning Plaintiffs’ involvement in a sexual abuse scandal at SCI-Pittsburgh and that the
federal claim must be dismissed under Federal Rule of Civil Procedure 12(b)(6).
III.
Standard of Review
A motion to dismiss filed pursuant to Federal Rule of Civil Procedure 12(b)(6) (“Rule
12(b)(6)”) tests the legal sufficiency of the complaint. Kost v. Kozakiewicz, 1 F.3d 176, 183 (3d
Cir. 1993). In deciding a Rule 12(b)(6) motion to dismiss, the court is not opining on whether
the plaintiff will be likely to prevail on the merits; rather, when considering a motion to dismiss,
the court accepts as true all well-pled factual allegations in the complaint and views them in a
light most favorable to the plaintiff. U.S. Express Lines Ltd. v. Higgins, 281 F.3d 383, 388 (3d
Cir. 2002). While a complaint does not need detailed factual allegations to survive a Rule
12(b)(6) motion to dismiss, a complaint must provide more than labels and conclusions. Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). A “formulaic recitation of the elements
of a cause of action will not do.” Id. (citing Papasan v. Allain, 478 U.S. 265, 286 (1986)).
“Factual allegations must be enough to raise a right to relief above the speculative level” and
“sufficient to state a claim for relief that is plausible on its face.” Id. “A claim has facial
plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S.
662, 129 S.Ct. 1937, 1949 (2009) (citing Twombly, 550 U.S. at 556).
The plausibility standard is not akin to a “probability requirement,” but it
asks for more than a sheer possibility that a defendant has acted unlawfully.
. . . Where a complaint pleads facts that are “merely consistent with” a
defendant’s liability, it “stops short of the line between possibility and
plausibility of ‘entitlement to relief.’”
Id. at 1949 (quoting Twombly, 550 U.S. at 556) (internal citations omitted).
4
Two working principles underlie Twombly. Id. First, with respect to mere conclusory
statements, a court need not accept as true all the allegations contained in a complaint.
“Threadbare recitals of the elements of a cause of action, supported by mere conclusory
statements, do not suffice.” Id. (citing Twombly, 550 U.S. at 555.) Second, to survive a motion
to dismiss, a claim must state a plausible claim for relief. Id. at 1950. “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.” Id. (citing Iqbal v. Hasty,
490 F.3d 143, 157-58). “But where 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 ‘show[n]—
that the pleader is entitled to relief.’” Id. (quoting FED. R. CIV. P. 8(a)(2)). A court considering
a motion to dismiss may begin by identifying allegations in the complaint that are not entitled to
the assumption of truth because they are mere conclusions. “While legal conclusions can
provide the framework of the complaint, they must be supported by factual allegations. When
there are well-pleaded factual allegations, a court should assume their veracity and then
determine whether they plausibly give rise to an entitlement to relief.” Id.
Leave to amend pleadings is generally at the discretion of the trial court, Foman v. Davis,
371 U.S. 178, 182 (1962), and shall be given when justice so demands. Fed. R. Civ. P. 15(a).
Typically, “even when [a] plaintiff does not seek leave to amend his complaint . . . unless the
district court finds that amendment would be inequitable or futile, the court must inform the
plaintiff that he or she has leave to amend the complaint within a set period of time.” Phillips v.
County of Allegheny, 515 F.3d 224, 245 (3d Cir. 2008). A court, however, may decide to deny
leave to amend where there is “undue delay, bad faith or dilatory motive on the part of the
movant, repeated failure to cure deficiencies by amendments previously allowed, undue
5
prejudice to the opposing party by virtue of allowance of the amendment, futility of amendment,
etc.” Foman, 371 U.S. at 182 (1962). The district court's discretion to deny leave to amend is
broadened as additional amendments become necessary. See Bjorgung v. Whitetail Resort, LP,
550 F.3d 263, 266 (3d Cir. 2008) (“Delay becomes ‘undue,’ and thereby creates grounds for the
district court to refuse leave, when it places an unwarranted burden on the court or when the
plaintiff has had previous opportunities to amend.”) (internal citations omitted).1 The standard of
legal sufficiency set forth in Federal Rule of Civil Procedure 12(b)(6) determines whether a
proposed amendment would be futile. In re Burlington Coat Factory Litig., 114 F.3d at 1434.
An amendment is futile where the complaint, as amended, would fail to state a claim upon which
relief can be granted. Id.; see Cowell v. Palmer Twp., 263 F.3d 286, 296 (3d Cir. 2001) (noting
that failure to overcome the time bar of a statute of limitations renders a proposed amendment
futile).
IV.
Discussion
A) Procedural Due Process Violation Claim
In count I of the complaint, Plaintiffs assert a claim against the individual Defendants
under 42 U.S.C. § 1983 for violations of procedural due process guarantees of the Fourteenth
Amendment to the United States Constitution. Specifically, Plaintiffs allege that the individual
Defendants
under color of state law and in violation of Plaintiffs’ constitutional rights, have
violated Plaintiffs’ Fourteenth Amendment rights by discharging them from
employment in a manner that led to a defamatory impression being left in the eyes
of the public and potential future employers without any due process.
1
See Zucco Partners, LLC v. Digimarc Corp., 552 F.3d 981, 1007 (9th Cir. 2009) (“The fact that [Plaintiff] failed to
correct these deficiencies in its Second Amended Complaint is ‘a strong indication that the plaintiffs have no
additional facts to plead.’ Vantive, 283 F.3d at 1098. Accordingly, the district court did not err when it dismissed the
SAC with prejudice, since it was clear that the plaintiffs had made their best case and had been found wanting. See
Metzler Investment, 540 F.3d at 1072 (upholding a dismissal with prejudice where, inter alia, the deficiencies at
issue ‘persisted in every prior iteration of the[complaint]’)”).
6
ECF No. 17 ¶ 62.
To establish that the individual Defendants violated Plaintiffs’ rights to procedural due
process, Plaintiffs must show that they suffered damage to their reputations as a result of a false
defamatory impression in connection with their public terminations and that they are entitled to a
name-clearing hearing as a result of this stigma. Hill v. Borough of Kutztown, 455 F.3d 225,
236 (3d Cir. 2006). Plaintiffs do not dispute that they are at-will employees. Although public
employees do not have property rights in their at-will employment relationships, an employee
may be entitled to bring a claim under § 1983 for violations of the Fourteenth Amendment
arising from the deprivation of their liberty rights when the employee is publically terminated
under false and defamatory circumstances. Id. In order to bring such a claim, a plaintiff must
show he passes the “stigma-plus test.”
In the public employment context, the “stigma-plus” test has been applied to
mean that when an employer “creates and disseminates a false and defamatory
impression about the employee in connection with his termination,” it deprives
the employee of a protected liberty interest. The creation and dissemination of a
false and defamatory impression is the “stigma,” and the termination is the “plus.”
Id. (quoting Codd v. Velger, 429 U.S. 624, 628 (1977)).
Here, for purposes of the motion to dismiss, the individual Defendants did not contest
Plaintiffs’ ability to satisfy the second requirement of the “stigma-plus” test under Hill. Id. at
238 (“conclude[d] . . . that a public employee who is defamed in the course of being terminated .
. . satisfies the ‘stigma-plus’ test even if, as a matter of state law, he lacks a property interest in
the job he lost”). Following the holding in Hill, Plaintiffs’ allegations in the amended complaint
concerning their terminations from employment are sufficient for this court to infer that they
could meet the “plus” aspect of the “stigma-plus” test. Id.
7
The amended complaint fails, however, to include factual allegations sufficient for the
court to infer plausibly that Plaintiffs can meet the first requirement of the “stigma-plus” test. In
order “[f]or government action to infringe the ‘reputation, honor, or integrity’ of an individual,
that government action first must involve a publication that is substantially and materially false.”
Ersek v. Township of Springfield, 102 F.3d 79, 83-84 (3d Cir. 1996) (citing Codd, 429 U.S. at
627-29) (emphasis added). Not only does the statement need to be substantially and materially
false, the reputational “harm must be caused by the falsity of the statement.” Id. at 84 (emphasis
added). The public statement referred to in the amended complaint is that the new team would
bring a “new direction” to SCI-Pittsburgh.
Standing alone, that public statement cannot
plausibly be construed as “a substantially and materially false statement.” Id.
The plaintiff in Ersek was a former employee of a municipal golf course who was
suspected of overstating the number of paying customers, leading to financial discrepancies. The
local police began an investigation into the plaintiff’s activities. Id. at 81. After obtaining some
evidence of impropriety, the police notified the Township Board of Commissioners (the
“Board”). Id. Shortly thereafter, a Board representative made a public statement that claimed
the Board was aware of the police activity from the beginning of the investigation and that the
Board directed the entire undertaking. Id. This statement was wholly untrue. Id. The Court of
Appeals for the Third Circuit concluded that the plaintiff in Ersek could not show that the
statement accompanying his termination caused sufficient harm to give rise to a hearing to clear
his name.
The problem with Ersek's argument is that the only false statements were that the
Board had been heavily involved in the investigation at the golf course.
Notwithstanding Ersek's protestations, we cannot imagine that such fabrications
caused more harm than would a statement that truthfully said that only the police
and a few Township officials were investigating him. Should Ersek receive the
hearing to which he claims he is entitled, the most for which he can seemingly ask
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in the hearing is the opportunity to show that the investigation was not conducted
by the Board and that any inference that the investigation was unusual is
incorrect. That hearing could not be used to prove Ersek's innocence. He would
still have hanging over his head the cloud of a police investigation. It seems
fanciful that any golf course that refused to hire Ersek because of the statement
actually given would now consider hiring him because only the police (and not
the Board) were investigating him.
In sum, the false statements in this case simply have not caused Ersek harm that a
name-clearing hearing could correct. It was the fact of the investigation, not who
conducted the investigation, that might have injured Ersek's reputation.
Id. at 84-85.
Similar to the plaintiffs in Ersek, Plaintiffs do not plausibly support that the harm to their
reputations was caused by the statement concerning a “new direction.” If Plaintiffs were to
receive a name-clearing hearing, Plaintiffs at most could rebut that Defendants actually wanted
to take SCI-Pittsburgh in a “new direction.” Plaintiffs would still have hanging over their heads
the much publicized sexual abuse scandal at SCI-Pittsburgh in close proximity to their
terminations. It seems far-fetched that Plaintiffs would have better employment prospects or
better overall standing in the community if their terminations were not accompanied by
Defendants’ statement of “new direction.” Similar to Ersek, it was the fact that Plaintiffs were
terminated in the midst of the sexual abuse scandal, not Defendants’ statement about taking SCIPittsburgh in a “new direction,” that likely injured Plaintiffs’ reputations.2 Considering the
2
See Brown v. Montgomery Cnty., No. 11-2130, 2012 WL 942645, at *3 (3d Cir. Mar. 21, 2012) (nonprecedential).
To satisfy the “stigma” prong of the test, the employee must show: 1) publication of 2) a
substantially and materially false statement that 3) infringed upon the “reputation, honor, or
integrity” of the employee. Ersek v. Springfield, 102 F.3d 79, 83-84 (3d Cir. 1996).
Brown failed to satisfy the stigma prong of the test. Even if Commissioner Matthews’
comments had been directed at him, such statements were not sufficiently stigmatizing to
implicate a liberty interest. Mercer v. Cedar Rapids, 308 F.3d 840, 845-46 (8th Cir. 2002) (“[N]o
liberty interest of constitutional significance is implicated when ‘the employer has alleged merely
improper or inadequate performance, incompetence, neglect of duty or malfeasance.’” (citation
omitted)). Assistant County Solicitor Coggins’s statements likewise described the employees’
conduct at the gift exchange as having been improper and did little, if anything, to add to the
stigma.
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factual allegations of the complaint, this court cannot plausibly infer that the “stigma” prong of
the “stigma-plus” test can be met.
In Fraternal Order of Police Lodge No. 5 v. Tucker, 868 F.2d 74 (3d Cir. 1989), the Court
of Appeals for the Third Circuit implied that relief may be granted in situations where the
statements made during termination are not in themselves false but the overall circumstances
surrounding the termination are nonetheless defamatory. In Tucker, the court heard a claim by
former employees of a police department concerning stigma related to statements made
concerning drug use:
When a police department announces to the media that it has information
sufficient to occasion an investigation of on-duty drug use, that in this context the
officer under investigation refused urinalysis, and that the Department considered
the overall situation such as to warrant dismissal, other law enforcement agencies
are unlikely to consider the officer for other employment because, at least without
more information than that reported, they will conclude that the officer is more
likely than not guilty as charged. Accordingly, if the plaintiffs had alleged and
proved in this case that they had not used drugs behind the Cobb Creek Park
tennis courts or that they had substantial evidence to tender at a hearing in support
of such an allegation, they, at least arguably, would have made out a
stigmatization case under the Due Process Clause.
Id. at 83.
The police department in Tucker never actually made a false statement, but the court noted that
the overall circumstances surrounding an announcement could still result in sufficient stigma.
Id.
Id. at *3; Peters v. Houston, No. 98-1580, 1999 WL 554581 (E.D. Pa. July 13, 1999) aff'd sub nom. Peters v.
Houstoun, 225 F.3d 650 (3d Cir. 2000) (noting that the plaintiff failed to state a claim because the complaint did not
allege that the statements were false or that the statements actually caused the plaintiff harm).
10
This case is factually distinguishable from Tucker. In Tucker the statements were much
more specific and they spoke to the reasons for termination.3 Id. The defendants in Tucker
terminated the plaintiffs for refusing to submit to urinalysis tests. Refusal of a urinalysis test
naturally results in suspicions of hiding drug use. The defendants in Tucker never explicitly
denied using drugs,4 whereas Plaintiffs in this case alleged that they did not participate in or
ignore the sexual abuse of inmates (ECF No. 17 ¶ 53).
The court of appeals in Ersek distinguished Tucker.
In Tucker, a city suspended police officers after the officers refused to submit to
urinalysis tests. See Tucker, 868 F.2d at 76. The city also issued a press release
explaining its actions. See id. at 76-77. In discussing the officers' liberty interests,
the court theorized that, had the officers been able to put forth evidence showing
that they did not use drugs, they arguably would have made out a due process
claim. See id. at 83. In other words, the court in Tucker, at least in dicta, might
have allowed the officers to prove their innocence at a name-clearing hearing.
However, the statements and their context in Tucker differ from those in the
present case. The court in Tucker made clear that a reasonable person examining
the statements and the dismissals would conclude that the officers more likely
than not used drugs. See id. at 83. In contrast, the Township statement could not
fairly be read as to charge Ersek with theft. The statement is careful to mention
that the investigation was just that, an investigation. Ersek could not, then, use the
name-clearing hearing to prove his innocence because the Township had not
charged him with anything.
Ersek, 102 F.3d at 85 n.9.
Referring to a “new direction” does not speak clearly to the reasons for termination and is
at best ambiguous about the reasons. Wetzel never accused Plaintiffs of wrongdoing or even
3
See Bishop v. Wood, 426 U.S. 341, 348 (1976) (noting that there is no deprivation of liberty, and thus no nameclearing hearing necessary, after “the discharge of a public employee whose position is terminable at the will of the
employer when there is no public disclosure of the reasons for the discharge”). But see Owen v. City of
Independence, Mo., 445 U.S. 622 (1980) (affirming a Court of Appeals for the Eighth Circuit holding that the
respondent deprived the petitioner of liberty without due process of law by publicizing false statements against the
petitioner shortly before he was terminated, even though the statements were not the official reasons for the
termination).
4
“At trial, the parties stipulated that, if called, the witnesses in the arbitration proceeding would give the same
testimony they gave before the arbitrator. . . . Before the arbitrator, none of the plaintiffs denied on-duty drug use.”
Tucker, 868 F.2d at 83.
11
implicated them in the wrongdoing.5 This court cannot infer that a reasonable person could
conclude that Wetzel’s referring to a “new direction” more likely than not insinuated that
Plaintiffs were complicit in the sexual abuse of inmates, especially where there is no factual
allegation that any individual Defendant or the DOC publicized the investigation into the sexual
abuse of inmates at SCI-Pittsburgh. In Tucker the public statements referred to a urinalysis test,
which is used for one specific purpose: testing for drug use. In this case the public statement
about a “new direction” is ambiguous, possibly commenting, for example, on Plaintiffs’ job
performance6 or the new management team’s ideas for improvement.
Although one could
speculate that Defendants implicated Plaintiffs in the ongoing sexual abuse scandal, the standard
of review under Twombly requires more than speculation or possibility. The amended complaint
fails to allege any facts from which the court could plausibly infer that Wetzel’s use of the phrase
“new direction” caused the public to conclude that Plaintiffs were involved in the sexual abuse
scandal. The factual allegations of the amended complaint infer at most that Plaintiffs were fired
in the midst of media publicity about the sexual abuse scandal.
Applying the holding in Ersek, this court concludes that the amended complaint fails to
meet the pleading burden of Twombly.
Plaintiffs argue that “new direction” was a false
statement by alleging that SCI-Pittsburgh was a well-run facility. Plaintiffs fail, however, to
allege facts to show that “new direction” was a substantially and materially false statement.
Additionally, the amended complaint does not plausibly support that the use of the phrase “new
direction” during the public termination of Plaintiffs actually caused any damage to Plaintiffs
that a name-clearing hearing could address.
Even if this court were to acknowledge the
5
Plaintiffs admit that the DOC is defending and indemnifying them for charges brought by inmates allegedly
subjected to abuse during Plaintiffs’ tenure at SCI-Pittsburgh. (ECF No. 17 ¶ 56).
6
See Brown, 2012 WL 942645, at *3 (noting that “no liberty interest of constitutional significance is implicated
when ‘the employer has alleged merely improper or inadequate performance, incompetence, neglect of duty or
malfeasance’” (citation omitted)).
12
possibility of unusual circumstances that do not require a false statement as suggested in Tucker,
the complaint fails to support that the inclusion of “new direction” would permit a reasonable
person to conclude that more likely than not Plaintiffs acquiesced in the commission of sexual
abuse.
Plaintiffs already amended the complaint once and there is no indication that there were
any other statements made by Defendants. Under these circumstances the court concludes it
would be futile to amend further.7 As such, the court will dismiss the § 1983 claim without leave
to amend. Plaintiffs are not foreclosed from filing a motion to reconsider or to reopen the case if
they have information that defamatory statements were made by any individual Defendant.
B) Pennsylvania Whistleblower Law Claims
As a result of the dismissal of the only claim (count I) supporting jurisdiction of this
court, the court will decline to exercise jurisdiction over the state law claim (count II). See 28
U.S.C. § 1367(c)(3). Accordingly, the state law claim will be dismissed without prejudice. See
Elmore v. Cleary, 399 F.3d 279, 283 (3d Cir. 2005) (holding that state claims dismissed because
the court declined to exercise jurisdiction cannot be dismissed with prejudice); Heffernan v.
Hunter, 189 F.3d 405, 414 n.8 (3d Cir. 1999) (same); Figueroa v. Buccaneer Hotel Inc., 118 F.3d
172, 182 (Fed. Cir. 1999) (same).
V.
Conclusion
For the reasons set forth above, count I (a claim for deprivation of procedural due process
rights under the Fourteenth Amendment) must be dismissed without leave to amend and count II
(a claim for violations of Pennsylvania Whistleblower Law) will be dismissed without prejudice.
7
See supra note 1.
13
ORDER
AND NOW, this 13th day of July, 2012, for the reasons set forth in the foregoing
memorandum opinion, it is hereby ordered that the Motion to Dismiss (ECF No. 19) filed by
Defendants John Wetzel, Mardi Vincent, Randy Britton, and the Pennsylvania Department of
Corrections will be GRANTED; and it is hereby further ordered that count I of the amended
complaint which asserts a claim under 42 U.S.C. § 1983 for a violation of the Fourteenth
Amendment is dismissed without leave to amend and count II which asserts a claim under the
Pennsylvania Whistleblower Law, 43 Pa. Stat. § 1421 et seq., is dismissed without prejudice.
The clerk shall mark this case closed.
By the court,
/s/ JOY FLOWERS CONTI
Joy Flowers Conti
U.S. District Judge
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