Conard v. Pa. State Police

KELLY CONARD, Plaintiff, v. PENNSYLVANIA STATE POLICE, et al., Defendants.

Civil No. 1:15-CV-351

UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

April 18, 2016

(Judge Rambo)

(Magistrate Judge Carlson)

REPORT AND RECOMMENDATION

I. Statement of Facts and of the Case

The instant case is the latest iteration of an on-going, decade-old dispute between the pro se plaintiff, Kelly Conard, and her former employer, the Pennsylvania State Police. In 2006 Conard, who had formerly worked for the state police between 1985 and 2002, sued the state police and two state police officials, Dennis Hile and Joseph Tripp, alleging that between 2002 and 2005 the defendants engaged in acts of gender discrimination, retaliated against Conard due to her exercise of her First Amendment rights, and denied Conard equal protection of the laws. These claims were either withdrawn, or denied by the district court which dismissed this case, and the dismissal of this lawsuit was affirmed by the United States Court of Appeals for the Third Circuit in January of 2010. Conard v. Pennsylvania State Police, 360 F. App'x 337, 338 (3d Cir. 2010).

Five years then passed, until February of 2015 when Conard, acting pro se, filed the instant lawsuit. (Doc. 1.) In Conard's pro se complaint, which she subsequently amended on August 31, 2015, (Doc. 12), the plaintiff seems to reprise her prior allegations of First Amendment retaliation, reviewing at great length these previously discredited and dismissed allegations of retaliation and discrimination. (Doc. 12, ¶¶1-30.) After detailing these past allegations, spanning conduct which took place tens years ago, Conard alleges that she has recently applied for employment, but has been denied jobs allegedly due to adverse prior employment references from the defendants. (Doc. 12, ¶¶31-36.) On the basis of these allegations, Conard, acting pro se, has now lodged new First Amendment retaliation claims against the defendants, the Pennsylvania State Police, and her former supervisors, Sergeants Joseph Tripp and Dennis Hile. (Id.)

The defendants have now moved to dismiss this amended complaint. (Doc. 14.) Conard has responded to this motion to dismiss, in part, by filing a brief and declaration which contain new and additional factual averments, (Docs. 18-21), a course of conduct which inspired the state police to file a motion to strike these pleadings (Doc. 23), which purport to make new factual allegations beyond those set forth in the amended complaint.

In this case, we find that the plaintiff's current amended complaint, on occasion conflates past and present claims, advances meritless or time-barred claims and names improper party-defendants. Therefore, we believe that the motion to dismiss should be granted. We further find that Conard's response to this motion to dismiss in some instances serves to further highlight the factual uncertainty and lack of clarity in a number of these claims, since the plaintiff's brief in opposition to the motion to dismiss articulates new and different factual grounds and legal theories in support of a number of these claims and causes of action. The elusive nature of a number of these claims makes ultimate resolution of some claims extremely difficult, but highlights to necessity of greater clarity on the plaintiff's part in the articulation of these claims. Accordingly, for the reasons set forth below, we recommend that the defendants' motion to strike be denied, but it is further recommended that the court direct the plaintiff to file an amended complaint providing a more definite statement of the remaining claims set forth in this case.

II. Discussion

A. Motions to Dismiss-Standard of Review

A motion to dismiss is designed to test the legal sufficiency of a complaint. Thus, Rule 12(b)(6) of the Federal Rule of Civil Procedure provides for the dismissal of a complaint, in whole or in part, if the plaintiff fails to state a claim upon whichrelief can be granted. The moving party bears the burden of showing that no claim has been stated, Hedges v. United States, 404 F.3d 744, 750 (3d Cir. 2005), and dismissal is appropriate only if, accepting all of the facts alleged in the complaint as true, the plaintiff has failed to plead "enough facts to state a claim to relief that is plausible on its face," Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007) (abrogating "no set of facts" language found in Conley v. Gibson, 355 U.S. 41, 45-46 (1957)). The facts alleged must be sufficient to "raise a right to relief above the speculative level." Twombly, 550 U.S. 544, 555. This requirement "calls for enough fact[s] to raise a reasonable expectation that discovery will reveal evidence" of necessary elements of the plaintiff's cause of action. Id. at 556. Furthermore, in order to satisfy federal pleading requirements, the plaintiff must "provide the grounds of his entitlement to relief," which "requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Phillips v. County of Allegheny, 515 F.3d 224, 231 (3d Cir. 2008) (brackets and quotation marks omitted) (quoting Twombly, 550 U.S. at 555). Thus, "[a]t the motion to dismiss stage, we accept as true all factual assertions, but we disregard threadbare recitals of the elements of a cause of action, legal conclusions, and conclusory statements. See Iqbal, 556 U.S. at 678-79, 129 S.Ct. 1937; Twombly, 550 U.S. at 555-57, 127 S.Ct. 1955; Burtch, 662 F.3d at 220-21." James v. City of Wilkes-Barre, 700 F.3d 675, 681 (3d Cir. 2012). As thecourt of appeals has observed: "The Supreme Court in Twombly set forth the 'plausibility' standard for overcoming a motion to dismiss and refined this approach in Iqbal. The plausibility standard requires the complaint to allege 'enough facts to state a claim to relief that is plausible on its face.' Twombly, 550 U.S. at 570, 127 S.Ct. 1955. A complaint satisfies the plausibility standard when the factual pleadings 'allow[ ] the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.' Iqbal, 129 S.Ct. at 1949 (citing Twombly, 550 U.S. at 556, 127 S.Ct. 1955). This standard requires showing 'more than a sheer possibility that a defendant has acted unlawfully.' Id. A complaint which pleads facts 'merely consistent with' a defendant's liability, [ ] 'stops short of the line between possibility and plausibility of "entitlement of relief." ' " Burtch v. Milberg Factors, Inc., 662 F.3d 212, 220-21 (3d Cir. 2011) cert. denied, 132 S. Ct. 1861, 182 L. Ed. 2d 644 (U.S. 2012).

Thus, in assessing a motion to dismiss the court engages in a three-step analysis: "First, the court must 'tak[e] note of the elements a plaintiff must plead to state a claim.' Iqbal, 129 S.Ct. at 1947^. Second, the court should identify allegations that, 'because they are no more than conclusions, are not entitled to the assumption of truth.' Id. at 1950. Finally, 'where there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise toan entitlement for relief.' Id." Santiago v. Warminster Tp., 629 F.3d 121, 130 (3d Cir. 2010).

In undertaking this task, the court generally relies only on the complaint, attached exhibits, and matters of public record. Sands v. McCormick, 502 F.3d 263, 268 (3d Cir. 2007). The court may also consider "undisputedly authentic document[s] that a defendant attached as an exhibit to a motion to dismiss if the plaintiff's claims are based on the [attached] documents." Pension Benefit Guar. Corp. v. White Consol. Indus., 998 F.2d 1192, 1196 (3d Cir. 1993). Moreover, "documents whose contents are alleged in the complaint and whose authenticity no party questions, but which are not physically attached to the pleading, may be considered." Pryor v. Nat'l Collegiate Athletic Ass'n, 288 F.3d 548, 560 (3d Cir. 2002); see also, U.S. Express Lines, Ltd. v. Higgins, 281 F.3d382, 388 (3d Cir. 2002) (holding that "[a]lthough a district court may not consider matters extraneous to the pleadings, a document integral to or explicitly relied upon in the complaint may be considered without converting the motion to dismiss in one for summary judgment.") However, the court may not rely on other parts of the record in determining a motion to dismiss. Jordan v. Fox, Rothschild, O'Brien &Frankel, 20 F.3d 1250, 1261 (3d Cir. 1994).

Two other considerations guide us in addressing this particular motion to dismiss, where we are asked consider a complaint whose claims are occasionallyunclear and where the gravamen of the claims, as alleged in the complaint differs from the assertions made by the plaintiff in her reply to the defendants' motion to dismiss. First, it is well-settled that a plaintiff cannot amend a complaint through the filing of a brief, or through arguments set forth in a brief opposing a dispositive motion. Indeed, "[i]t is axiomatic that the complaint may not be amended by the briefs in opposition to a motion to dismiss." Pennsylvania ex rel. Zimmerman v. Pepsico, Inc., 836 F.2d 173, 181 (3d Cir. 1988) (quoting Car Carriers, Inc. v. Ford Motor Co., 745 F.2d 1101, 1107 (7th Cir. 1984)); cf. Frederico v. Home Depot, 507 F.3d 188, 202 (3d Cir. 2007) ("[W]e do not consider after-the-fact allegations in determining the sufficiency of [a] complaint under Rules 9(b) and 12(b)(6).").

In addition, when a plaintiff's complaint is less than clear, the Court may, sua sponte, order the plaintiff to file a more definite statement pursuant to Rule 12(e) of the Federal Rules of Civil Procedure in order to clarify the claims the plaintiff asserts against the defendants. See, e.g., Kyeame v. Buchheit, No. 1:07-CV-1239, 2011 WL 3651369, at *1 (M.D. Pa. Aug. 18, 2011); MFS, Inc. v. Twp. of South Annville, No. 1:05-CV-1371, 2006 WL 3254535, at *7 (M.D.Pa. Nov.9, 2006); see also Moore's Federal Practice, § 12.36 (Matthew Bender 3d ed.) ("Because of its potential...