STANLEY v. CITY OF PITTSBURGH et al

Filing 35

ORDER. It is ORDERED that 25 Motion to Dismiss the Amended Complaint filed by Defendants City of Pittsburgh and Todd C. Siegel is GRANTED WITHOUT PREJUDICE. It is further ORDERED that 27 Motion to Dismiss the Amended Complaint filed by Defendant Wendy Kobee and Lourdes Sanchez Ridge is GRANTED IN PART WITH PREJUDICE AND GRANTED IN PART WITHOUT PREJUDICE. It is further ORDERED that 34 Report and Recommendation is ADOPTED as the Opinion of the Court, except to the extent amended or modified by this Order. Signed by Judge Mark R. Hornak on 2/12/16. (bdb)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
T AMIKO L. STANLEY,
Plaintiff,
v.
CITY OF PITTSBURGH, et al.,
Defendants.

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2: 15-cv-00555
Judge Mark R. Hornak
Magistrate Judge Robert C.

Mit~~hell

ORDER
AND NOW, this 12th day of February, 2016, after the Plaintiff, Tamiko L. Stanley, filed an
action in the above-captioned case, and after an Amended Complaint was filed in response to the
dismissal without prejudice of the original Complaint [ECF No. 23], a motion to dismiss was

C...,

submitted by Defendants City of Pittsburgh and Todd C. Siegel [ECF No. 25], and after a separate
motion to dismiss was submitted by Defendants Wendy Kobee and Lourdes Sanchez Ridge [ECF
No. 27], and after a Report and Recommendation ("R&R") was filed by the United States Magistrate
Judge [ECF No. 34] granting the parties a period of time after being served with a copy to file
written objections thereto, and no objections having been filed, and upon independent review of the
motions and the record, and upon consideration of the Magistrate Judge's Report and
Recommendation 1 [ECF No. 34],
IT IS ORDERED that the motion to dismiss the Amended Complaint filed by Defendants
City of Pittsburgh and Todd C. Siegel [25] is GRANTED WITHOUT PREJUDICE. All claims

1 This

Court does not adopt the R&R's reference at page II to Chipo/lini v. Spencer Gifts, Inc., 814 F.2d 893 (3d Cir.
1987)(en bane) relative to the shifting burdens analysis of McDonnell-Douglas v. Green, 411 U.S. 792 (1973), for the
reasons recognized by our Court of Appeals in Seman v. Coplay Cement Co., 26 F.3d 428,438 n. 13 (3d Cir. 1994).

asserted in the Amended Complaint are brought under 42 U.S.C. § 1981 alleging retaliation? The
claims against the City of Pittsburgh and Mr. Siegel alleged pursuant to 42 U.S.C. §1981 are
dismissed without prejudice based on the decision of our Court of Appeals in McGovern v. City of
Philadelphia, 554 F.3d 114 (3d Cir. 2009) (dismissing § 1981 claims against the city and city

officials), in that there is no direct claim authorized against state actors under§ 1981.3 All such
claims must be asserted only via the rightofactioncreated by42 U.S.C. § 1983 4 • For the reasons set
forth in the R&R, Plaintiff may file a Second Amended Complaint as to such claims against the City
of Pittsburgh and Mr. Siegel such as may be asserted via 42 U.S.C. § 1983;
IT IS FURTHER ORDERED that the motion to dismiss the Amended Complaint filed by
Defendant Wendy Kobee and Lourdes Sanchez Ridge [27] is GRANTED IN PART WITH
PREJUDICE AND GRANTED IN PART WITHOUT PREJUDICE. All claims against Ms. Kobee
are dismissed with prejudice. Read in a light most favorable to the Plaintiff, all of the plausible
allegations as to Mr. Kobee contained in the Amended Complaint relate solely to her capacity as, and
actions taken as, an Assistant City Solicitor, e.g. one of the lawyers representing the City of
Pittsburgh in regard to claims asserted via Plaintiffs prior lawyer. There is no plausible allegation

2 The

Plaintiff asserts that his substantive rights under 42 U.S.C. §1981 have been infringed by retaliatory conduct of the
Defendants. Section 1981 proscribes such retaliation. CBOCS West, Inc. v. Humphries, 553 U.S. 442 (2008). Our Court
of Appeals requires that there be proof of underlying discrimination proscribed by §1981 to make out a § 1981 retaliation
claim. Estate ofOliva ex rei. McHugh v. New Jersey, 604 F.3d 788, 798 (3d Cir. 20 I 0). This Court agrees with the R&R
that Plaintiff sufficiently pleads, albeit not as a separate claim, such impermissible racial discrimination so as to satisfy
the Oliva rule. Thus the Court need not formally reject, out of hand, the Plaintiffs suggestion that the Court should
consider Oliva to be anything other than the binding precedent that it is. See Ellis v. Budget Maintenance, Inc., 25
F.Supp. 3d 749, 757 (E.D. Pa. 2014).
3 As explained by the R&R, [ECF No. 34 at 16], a defendant may be liable for a violation of§ 1981, but the vehicle
by which a plaintiff effectuates his right to recover for such a violation is § 1983. See McGovern, 554 F.3d. at 122
("[W]hile § 1981 creates the rights, § 1983 provides the remedy to enforce those rights against state actors.").

4

This same rule would be applicable as to any claims sought to be asserted ~gainst Kobee and Sanchez-Ridge.

2

that her actions were undertaken in retaliation for Plaintiffs allegedly protected activity. At best, the
Amended Complaint asserts that she was present when others acted, and that she signed a letter as a
lawyer for the City ofPittsburgh, that responded to a letter from Plaintiff's former lawyer soliciting a
settlement oflegal claims against the City of Pittsburgh and others, and communicated the decision
of the City of Pittsburgh terminating the Plaintiffs employment. The assertions as to Kobee in the
Amended Complaint are otherwise purely conclusory, [ECF No. 24]

at~~

43-45. Thus, all claims

against Kobee will be dismissed with prejudice.
The claims against the City Solicitor, Ms. Sanchez-Ridge, are both very thin and a closer call.
The core of the Plaintiffs assertion of liability against her is that at a CLE seminar several weeks

after the Plaintiffs termination, Ms. Sanchez-Ridge, in response to a casual question from Plaintiff's
former counsel, supposedly said that the Pittsburgh Police investigated a charge against the Plaintiff
made by Mr. Siegel because Plaintiff sued "us" (perhaps referring to one or more of the named
Defendants inclusive of herself). Read in conjunction with the other allegations of the Amended
Complaint, it is plausibly pled (barely) that by inference, Ms. Sanchez-Ridge's comment to
Plaintiffs counsel referrring to "us" reflected personal involvement in a retaliatory police
investigation of the Plaintiff. 5 This Court will adopt the R&R in this regard, but makes the following
observations. The Plaintiffs assertions are supported by the thinnest reed of plausibility, and in
making them, it would appear to the Court that Plaintiffs lawyer has made his prior lawyer a central
witness in his client's case, with all of the implications of that status. See Pa. R. Prof. Conduct 3.7.

Given common parlance among lawyers, it is far more plausible that "us" referred to the institutional client she
represents. That, however, is not a distinction to be resolved at the motion to dismiss stage.

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IT IS FURTHER ORDERED that for the reasons set forth in this Order, the Plaintiffs
Amended Complaint is dismissed, but with leave to amend to the extent permitted by this Order.
Plaintiff is permitted to amend6 the Amended Complaint to set forth § 1983 claims against
Defendants City of Pittsburgh, Siegel, and Sanchez-Ridge. Any such Second Amended Complaint
must be filed on or before March 9, 2016. Should such Second Amended Complaint not be filed by
such date, then the dismissals without prejudice as set forth in this Order shall be eonverted to
dismissals with prejudice without further notice or Order.
IT IS FURTHER ORDERED that except to the extent amended or modified by this Order,
the R&R is adopted as the Opinion of the Cou

Mark R. Hornak
United States District Judge
cc: All Counsel of Record

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This will be the Plaintiffs last shot in such regards, absent the most compelling of circumstances.

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