DIXON et al v. OSA GLOBAL SECURITY et al

Filing 15

MEMORANDUM OPINION AND ORDER granting 13 Motion to Dismiss for Failure to State a Claim. It is further ORDERED that on or before July 26, 2012 Plaintiffs may file an amended complaint to correct the noted deficiencies in their original complaint, or file a notice of intent to stand on the current complaint. Failure to timely do either will result in the dismissal of the School District from this action.Signed by Judge Terrence F. McVerry on 07/12/2012. (bsc)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
LEONARD DIXON and
DECEMBER L. DIXON,

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Plaintiffs,
v.
OSA GLOBAL SECURITY and
PENN HILLS SCHOOL DISTRICT and
MUNICIPALITY OF PENN HILLS,
Defendants.

02: 11-CV-1654

MEMORANDUM OPINION AND ORDER OF COURT
Presently before the Court is DEFENDANT PENN HILLS SCHOOL DISTRICT’S
MOTION TO DISMISS, with brief in support (Document Nos. 13 and 14). By Text Order of June
1, 2012, the Court ordered Plaintiffs to respond to the Motion by June 21, 2012; however, to date,
Plaintiffs have not filed a response.
Background
As the law requires, at the motion to dismiss stage, all disputed facts and inferences are
resolved in favor of Plaintiffs, the non-moving party. This lawsuit is brought pursuant to a
complaint filed by pro se plaintiffs, Leonard Dixon and December L. Dixon. The factual
allegations made in the Complaint are vague and difficult to comprehend.
Plaintiffs are attempting to plead a cause of action under 42 U.S.C. §1983 and contend that
Defendants violated their constitutional rights (1) to be free from unreasonable searches and
seizures; (2) “to not be put twice in jeopardy for the same offence (sic), compelled to be witness
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against oneself, deprived of liberty or property, without due process of law, without just
compensation;” and (3) to “compulsory process.” Complaint at 4. Named as defendants are OSA
Global Security, Penn Hills School District, and the Municipality of Penn Hills. OSA Global
Security has not been served with the summons and Complaint and the Municipality of Penn Hills
has filed an Answer. The instant Motion to Dismiss is filed only behalf of Penn Hills School
District (“the School District”).
Standard of Review
A motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) challenges the
legal sufficiency of the complaint. The United States Supreme Court has held that “[a] plaintiff’s
obligation to provide the ‘grounds’ of his ‘entitle[ment] to relief’ requires more than labels and
conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Bell
Atlantic Corp. v. Twombly, 550 U.S. 554, 555 (2007) (citing Papasan v. Allain, 478 U.S. 265, 286
(1986)) (alterations in original).
The Court must accept as true all well-pleaded facts and allegations, and must draw all
reasonable inferences therefrom in favor of the plaintiff. However, as the Supreme Court made
clear in Twombly, the “factual allegations must be enough to raise a right to relief above the
speculative level.” Id. The Supreme Court has subsequently broadened the scope of this
requirement, stating that only a complaint that states a plausible claim for relief survives a motion
to dismiss.” Ashcroft v. Iqbal, 556 U.S. 662, 129 S. Ct. 1937, 1950 (2009) (emphasis added).
Thus, after Iqbal, a district court must conduct a two-part analysis when presented with a
motion to dismiss for failure to state a claim. Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d
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Cir. 2009). First, the Court must separate the factual and legal elements of the claim. Id.
Although the Court “must accept all of the complaint’s well-pleaded facts as true, [it] may
disregard any legal conclusions.” Id. at 210-211. Second, the Court “must then determine whether
the facts alleged in the complaint are sufficient to show that the plaintiff has a ‘plausible claim for
relief.’ In other words, a complaint must do more than allege the plaintiff’s entitlement to relief.
A complaint has to ‘show’ such an entitlement with its facts.” Id. at 211 (citing Iqbal 129 S. Ct. at
1949). The determination for “plausibility” will be “‘a context-specific task that requires the
reviewing court to draw on its judicial experience and common sense.’” Id. at 211 (quoting Iqbal
129 S. Ct. at 1950).
As a result, “pleading standards have seemingly shifted from simple notice pleading to a
more heightened form of pleading, requiring a plaintiff to plead more than the possibility of relief
to survive a motion to dismiss.” Id. at 211. That is, “all civil complaints must now set out
‘sufficient factual matter’ to show that the claim is facially plausible. This then ‘allows the court
to draw the reasonable inference that the defendant is liable for the misconduct alleged.’” Id. at
210 (quoting Iqbal, 129 S. Ct. at 1948). “A pleading offering only ‘labels and conclusions’ or ‘a
formulaic recitation of the elements of a cause of action will not do.’” Id. (quoting Twombly 550
U.S. at 555).
However, nothing in Twombly or Iqbal changed the other pleading standards for a motion
to dismiss pursuant to Fed. R. Civ. P. 12(b)(6) and the requirements of Fed. R. Civ. P. 8 must still
be met. See Phillips v. Co. of Allegheny, 515 F.3d 224, 231 (3d Cir. 2008) (internal citations
omitted). Fed. R. Civ. P. 8 requires a showing, rather than a blanket assertion, of entitlement to
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relief, and “contemplates the statement of circumstances, occurrences, and events in support of the
claim presented and does not authorize a pleader’s bare averment that he wants relief and is
entitled to it.” Twombly, 550 U.S. at 555 n.3 (internal citations and quotations omitted).
Additionally, the Supreme Court did not abolish the Fed. R. Civ. P. 12(b)(6) requirement that “the
facts must be taken as true and a complaint may not be dismissed merely because it appears
unlikely that the plaintiff can prove those facts or will ultimately prevail on those merits.”
Phillips, 515 F.3d at 231(citing Twombly, 550 U.S. at 553).
The Court is mindful that the sufficiency of a pro se pleading must be construed liberally in
favor of the plaintiff, even after Iqbal. See Erickson v. Pardus, 551 U.S. 89 (2007). Moreover, a
court should not dismiss a civil rights complaint with prejudice for failure to state a claim without
granting leave to amend, unless it finds bad faith, undue delay, prejudice or futility. See Grayson
v. Mayview State Hosp., 293 F.3d 103, 110-11 (3d Cir. 2002).
Discussion
Generally, 42 U.S.C. §1983 does not create substantive rights, but rather provides a remedy
for a violation of rights created by federal law or the Constitution of the United States. 42 U.S.C.
§1983; City of Okla. City v. Tuttle, 471 U.S. 808, 816 (1985). Title 42, United States Code, Section
1983 provides in relevant part:
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of
any State or Territory or the District of Columbia, subjects, or causes to be subjected, any
citizen of the United States or other person within the jurisdiction thereof to the deprivation
of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable
to the party injured in an action at law, suit in equity, or other proper proceeding for
redress….
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To establish a Section 1983 claim, a plaintiff “must demonstrate a violation of a right secured by the
Constitution and the laws of the United States [and] that the alleged deprivation [violation of a
right] was committed by a person acting under the color of state law.” Kneipp v. Tedder, 95 F.3d
1199, 1204 (3d Cir. 1996).
The School District argues that the claims against it in the Complaint should be dismissed
because Plaintiffs have failed to assert any factual allegations which would entitle them to relief. In
order to have a claim for relief, Plaintiffs have an “obligation to provide the ‘grounds’ of [their]
‘entitle[ment] to relief,” and that requires “more than labels and conclusions, and a formulaic
recitation of the elements of a cause of action will not do.” Twombly, 550 U.S. at 555. As explained
above, the Court must first separate the factual and legal elements of the claim. Fowler 578 F.3d at
210. Although the Court “must accept all of the complaint’s well-pleaded facts as true, [it] may
disregard any legal conclusions.” Id. at 210-211. Second, the Court “must then determine whether
the facts alleged in the complaint are sufficient to show that the plaintiff has a plausible claim for
relief.”
Plaintiffs’ allegations in the Complaint appear to stem from incidents which occurred on two
separate dates, February 17, 2011 and March 28, 2011. However, the Complaint sets forth only a
mere cursory overview of either event.
A.

Incidents of February 17, 2011
On February 17, 2011, Plaintiffs contend that “Officer Napier of OSA Global initiated

search and seizure of student Dixon, property and person,” and that “[t]he search and seizure failed

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to conform to conventional requirements.” Complaint at 5. However, no substantive facts are pled
as to the circumstances surrounding the alleged search and seizure.
Further, according to the Complaint, “principal Gavin of Penn Hills School District
continued the search and seizure, plus issuance of three days expulsion of student Dixon.” Id.
Plaintiffs allege that “the continuance of the search and seizure failed to conform with Conventional
requirements,” and that “the expulsion of student Dixon fails to comply with prescribed standards.”
Id. The Complaint is completely void of any factual allegations surrounding the alleged
continuance of the search and seizure by Principal Gavin or how the expulsion or Principal Gavin’s
alleged conduct violated Plaintiffs’ constitutional rights.
The Complaint also states that on or about February 17, 2011, superintendent McClaron of
the School District extended the expulsion to seven (7) more days and that “[t]he expulsion of
student Dixon fails to comply with prescribed standard.” Id. Again, the Complaint is void of any
factual allegations as to why the expulsion was extended, or how Superintendent McClaron’s
alleged conduct violated Plaintiffs’ constitutional rights.
The Complaint is completely bereft of any factual allegations that demonstrate that the
School District violated any constitutional rights of the Plaintiffs or any law of the United States. In
the absence of anything more than unsupported conclusions, any and all claims against the School
District which are based on the incidents which allegedly occurred on February 17, 2011 will be
dismissed in their entirety.

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B.

Incidents of March 28, 2011
The Complaint also states that Plaintiffs’ constitutional rights were violated as a result of an

arrest and probable cause hearing on March 28, 2011. Plaintiffs allege that police officer A. Green,
of the Municipality of Penn Hills “effectuated the arrest of student Dixon.” Complaint at 6.
According to the Complaint, Magistrate Hromyak of the Municipality of Penn Hills
“effectuated a warrant for the arrest of student Dixon” and then allegedly held a Probable Cause
hearing and charged student Dixon with a violation of “a Statute.” Id.
There are no facts in the Complaint which explain why student Dixon was arrested, what
was in the warrant, what occurred during the hearing, what statute Plaintiff was charged with
violating, or how Plaintiffs’ constitutional rights were violated. Moreover, and most significantly
for the purpose of this Memorandum Opinion, the School District does not appear to have been
involved in any of the incidents that occurred on March 28, 2011.
Without additional facts in the Complaint, and in the absence of anything more than
unsupported conclusions, all claims against the School District which arose from the March 28,
2011 incident will be dismissed in their entirety.
C.

Leave to Amend the Complaint

If a civil rights complaint is subject to Rule 12(b)(6) dismissal, a district court must permit a
curative amendment unless such an amendment would be inequitable or futile. Alston v. Parker, 363
F.3d 229, 235 (3d Cir. 2004); see also Grayson v. Mayview State Hosp., 293 F.3d 103 (3d Cir.
2002). A district court must provide the plaintiff with this opportunity even if the plaintiff does not
seek leave to amend. The district court may dismiss the action if the plaintiff does not file an
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amended complaint or if the plaintiff files a notice of his or her intent to stand on the complaint as
filed.
Accordingly, Plaintiffs will be granted leave to amend their Complaint if they so choose. If
Plaintiffs choose to file an amended complaint, they must plead sufficient facts to state a valid claim
against the School District. It will be important to address the shortcomings of the Complaint as
identified by the Court and the School District to assure that the amended Complaint states a valid
claim against the School District insofar as the Court is unlikely to permit any further amendments.
Additionally, if Plaintiffs decide to file an amended Complaint, this Court urges them to consult
Rule 4 of the Federal Rules of Civil Procedure to ensure proper service of same on all parties.
Conclusion
For the foregoing reasons, the Motion to Dismiss filed by the School District will be
GRANTED. An appropriate Order follows.
McVerry, J.

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IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
LEONARD DIXON and
DECEMBER L. DIXON,

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)
)
)
)
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)
)
)
)
)
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Plaintiffs,
v.
OSA GLOBAL SECURITY and
PENN HILLS SCHOOL DISTRICT and
MUNICIPALITY OF PENN HILLS,
Defendants.

02: 11-CV-1654

ORDER OF COURT
AND NOW, this 12th day of July, 2012, in accordance with the foregoing
Memorandum Opinion, it is hereby ORDERED, ADJUDGED, AND DECREED that the
Motion to Dismiss filed by Defendant Penn Hills School District is GRANTED.
It is further ORDERED that on or before July 26, 2012 Plaintiffs may file an amended
complaint to correct the noted deficiencies in their original complaint, or file a notice of intent
to stand on the current complaint. Failure to timely do either will result in the dismissal of the
School District from this action.
BY THE COURT:

s/Terrence F. McVerry
United States District Court Judge
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cc:

Leonard Dixon
December L. Dixon
2430 Atlas Street
Pittsburgh, PA 15235
(via U.S. Postal Service and
Certified Mail, Return Receipt Requested)
Alfred C. Maiello, Esquire
Maiello, Brungo & Maiello
Email: [e-mail]
Heather M. Langeland, Esquire
Maiello, Brungo & Maiello, LLP
Email: [e-mail]
Roger W. Foley , Jr., Esquire
Maiello, Brungo & Maiello, LLP
Email: [e-mail]
Edmond R. Joyal, Jr., Esquire
Law Office of Joseph S. Weimer
Email: [e-mail]

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