Opinion
CIVIL NO. 3:17-CV-00371
10-05-2018
NICOLE PALMER, Plaintiff, v. PENNSYLVANIA STATE POLICE, et al. Defendants.
(Judge Mariani)
( ) REPORT AND RECOMMENDATION
I. INTRODUCTION
Before the Court is Defendant Frank Noonan's motion to dismiss the plaintiff's complaint (Doc. 6). Nicole Palmer, a civilian employed with the Pennsylvania State Police ("PSP"), brought the instant suit against the PSP, Noonan, and several supervisors and troopers of the PSP. Palmer contends that she was harassed, intimidated, and eventually involuntarily committed for psychiatric treatment as retaliation for her serious allegations against a fellow member of the PSP. Palmer's complaint does not allege that Noonan played any role in these events but rather claims that Noonan, in both his official and individual capacity as Commissioner of the PSP at the time of the alleged incidents, failed to train and supervise the individuals responsible for the alleged misconduct and subsequently conspired with the other defendants to violate her constitutional rights. The motion is fully briefed and ripe for disposition, and for the reasons that follow, it will be recommended that the plaintiff's complaint against Noonan be dismissed, but with leave granted to allow the plaintiff to file an amended complaint that meets the pleading requirements prescribed by law.
In the absence of bad faith, undue delay, prejudice, or futility, a court should grant a plaintiff leave to file a curative amended pleading. Alston v. Parker, 363 F.3d 229, 235 (3d Cir. 2004); see also Grayson v. Mayview State Hosp., 293 F.3d 103, 108 (3d Cir. 2002) (even where a plaintiff does not seek leave to amend, if a complaint is vulnerable to dismissal under Rule 12(b)(6), a district court must permit amendment, unless to do so would be inequitable or futile). In this case, Palmer has requested that she be granted leave to amend if her claims against Noonan are dismissed and we do not find that it would be inequitable or futile to permit the plaintiff opportunity to amend. Therefore, we recommend that the court dismiss this claim without prejudice to Palmer filing an amended complaint which satisfies the pleading requirements set by law for her claims against Noonan.
II. BACKGROUND
The factual background to this report and recommendation is taken from the allegations set forth in the complaint, which are accepted as true for purposes of considering the pending motion to dismiss.
Nicole Palmer began employment with the PSP as a civilian Police Communications Operator at the Blooming Grove Barracks in March 2013. (Compl., ¶ 14). On the evening of September 12, 2014, Palmer was working the night shift at Blooming Grove when the barracks came under gunfire, resulting in the shooting of Corporal Bryan Dickson, who was fatally injured, and Trooper Alex Douglass. (Id., ¶¶ 16-22). As part of the investigation into the shooting, Palmer was interviewed by the PSP three days after the shooting. (Id., ¶ 26). In response to a question about whether she had a personal, physical or sexual relationship with a specific PSP trooper, Palmer responded that the identified trooper had raped her in 2013 and continued to engage in other inappropriate conduct toward her after the rape. (Id., ¶¶ 26-28).
After Palmer made this allegation against the PSP trooper, other troopers and PSP supervisors began to harass and intimidate her in an attempt to ensure that she did not tell others about the allegations. (Id., ¶ 32). In November 2014, Palmer met with Defendants Brownmiller and Bowen in Harrisburg to discuss the allegations she made in September. (Id., ¶ 34). At this meeting, Palmer was allegedly advised not to tell anyone about the rape or the harassment. (Id., ¶ 35). Brownmiller called Palmer several times after the meeting, advising her not to speak of the allegations. (Id., ¶ 36). After Palmer refused to forgo prosecution or recant her allegations, two PSP troopers allegedly made a false report that Palmer was offered one million dollars to keep quiet about her allegations, and PSP opened an official investigation into the matter. (Id., ¶ 39-42). Palmer was told to appear at a meeting in Bethlehem on January 15, 2015. (Id., ¶ 43).
On January 9, six days before the scheduled meeting, Defendants Pajalich and Slovinski went to Palmer's residence, armed and in full uniform, and informed her that she was subject to immediate psychiatric commitment due to a claim that Palmer was going to commit suicide. (Id., ¶ 44). Palmer and her boyfriend, another member of PSP, advised the defendants that Palmer was not suicidal, but Pajalich and Slovinski placed Palmer in marked police vehicle and transported her to a hospital for psychiatric commitment. (Id., ¶¶ 45-47). It is alleged that Pajalich completed paperwork so that Palmer could not release herself from the hospital. (Id., ¶ 48). Palmer was eventually released after it was determined there was no basis for her psychiatric commitment. (Id., ¶ 49).
At the scheduled January 15 meeting, the lieutenant in charge of the investigation advised Palmer that he was aware of her involuntary psychiatric commitment. (Id., ¶ 50). When Palmer's workers' compensation counsel asked why the improper commitment was allowed to take place, the lieutenant responded that "We take care of our own." (Id., ¶ 51).
According to the plaintiff, the alleged harassment and retaliation against Palmer continued even after the January meeting. In February 2015, Palmer was sent notice by mail that she was scheduled for an independent psychiatric evaluation related to a workers' compensation claim she made. (Id., ¶ 54). Although she had already received this notice of the evaluation, Defendant Carey and another unidentified member of PSP went to Palmer's residence, armed and in full uniform, and served her with papers ordering her to attend the psychiatric evaluation. (Id., ¶ 55).
Palmer filed her complaint in this matter in the Court of Common Pleas of Lackawanna County on February 8, 2017. Her complaint makes no factual allegations implicating Defendant Noonan in the underlying conduct which forms the gravamen of this lawsuit. Instead, she simply alleges in a conclusory manner that Noonan, who was Commissioner of the PSP at the time the alleged misconduct occurred, failed to train, supervise, and discipline members of the PSP, which resulted in a violation of her constitutional rights under 42 U.S.C. § 1983. She further alleges without supporting factual averments that Noonan developed, implemented, approved or maintained deficient customs and policies, and that he failed to act or to prevent the misconduct. Finally, Palmer contends in a conclusory fashion that Noonan conspired with the other defendants to violate her constitutional rights. The case was subsequently removed to this court by the defendants on February 28, 2017 (Doc. 1).
Defendant Noonan filed the instant motion to dismiss on March 7, 2017, (Doc. 6) and the motion has been fully briefed (Docs. 7, 9) and is ripe for resolution. For the reasons set forth below, it is recommended that this motion to dismiss be granted.
III. STANDARD OF REVIEW
Defendant Noonan has moved to dismiss the claims against him pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, "failure to state a claim upon which relief can be granted." With respect to this benchmark standard for legal sufficiency of a complaint, the United States Court of Appeals for the Third Circuit has aptly noted the evolving standards governing pleading practice in federal court, stating that:
Standards of pleading have been in the forefront of jurisprudence in recent years. Beginning with the Supreme Court's opinion in Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) continuing with our opinion in Phillips [v. County of Allegheny, 515 F.3d 224, 230 (3d Cir. 2008)]and culminating recently with the Supreme Court's decision in Ashcroft v. Iqbal —U.S.—, 129 S. Ct. 1937 (2009) 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.Fowler v. UPMC Shadyside, 578 F.3d 203, 209-10 (3d Cir. 2009).
In considering whether a complaint fails to state a claim upon which relief may be granted, the Court must accept as true all allegations in the complaint and all reasonable inferences that can be drawn therefrom are to be construed in the light most favorable to the plaintiff. Jordan v. Fox Rothschild, O'Brien & Frankel, Inc., 20 F.3d 1250, 1261 (3d Cir. 1994). However, a court "need not credit a complaint's bald assertions or legal conclusions when deciding a motion to dismiss." Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 906 (3d Cir. 1997). Additionally a court need not "assume that a ... plaintiff can prove facts that the ... plaintiff has not alleged." Associated Gen. Contractors of Cal. v. California State Council of Carpenters, 459 U.S. 519, 526 (1983). As the Supreme Court held in Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), in order to state a valid cause of action a plaintiff must provide some factual grounds for relief which "requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of actions will not do." Id. at 555. "Factual allegations must be enough to raise a right to relief above the speculative level." Id.
In keeping with the principles of Twombly, the Supreme Court has underscored that a trial court must assess whether a complaint states facts upon which relief can be granted when ruling on a motion to dismiss. In Ashcroft v. Iqbal, 556 U.S. 662 (2009), the Supreme Court held that, when considering a motion to dismiss, a court should "begin by identifying pleadings that, because they are no more than conclusions, are not entitled to the assumption of truth." Id. at 679. According to the Supreme Court, "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Id. at 678. Rather, in conducting a review of the adequacy of complaint, the Supreme Court has advised trial courts that they must:
[B]egin by identifying pleadings that because they are no more than conclusions are not entitled to the assumption of truth. While legal conclusions can provide the framework of a 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. at 679.
Thus, following Twombly and Iqbal, a well-pleaded complaint must contain more than mere legal labels and conclusions. Rather, a complaint must recite factual allegations sufficient to raise the plaintiff's claimed right to relief beyond the level of mere speculation. As the United States Court of Appeals for the Third Circuit has stated:
[A]fter Iqbal, when presented with a motion to dismiss for failure to state a claim, district courts should conduct a two-part analysis. First, the factual and legal elements of a claim should be separated. The District Court must accept all of the complaint's well-pleaded facts as true, but may disregard any legal conclusions. Second, a District 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.Fowler, 578 F.3d at 210-11.
In practice, consideration of the legal sufficiency of a complaint entails a three-step analysis: "First, the court must 'tak[e] note of the elements a plaintiff must plead to state a claim.' Iqbal, 556 U.S. at 675. Second, the court should identify allegations that, 'because they are no more than conclusions, are not entitled to the assumption of truth.' Id. at 679. Finally, 'where there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement for relief.' Id." Santiago v. Warminster Twp., 629 F.3d 121, 130 (3d Cir. 2010).
In addition to these pleading rules, a civil complaint must comply with the requirements of Rule 8(a) of the Federal Rules of Civil Procedure, which defines what a complaint should say and provides that:
(a) A pleading that states a claim for relief must contain (1) a short and plain statement of the grounds for the court's jurisdiction, unless the court already has jurisdiction and the claim needs no new jurisdictional support; (2) a short and plain statement of the claim showing that the pleader is entitled to relief; and (3) a demand for the relief sought, which may include relief in the alternative or different types of relief.Fed. R. Civ. P. 8(a).
Thus, a well-pleaded complaint must contain more than mere legal labels and conclusions. Rather, a plaintiff's complaint must recite factual allegations which are sufficient to raise the plaintiff's claimed right to relief beyond the level of mere speculation, set forth in a "short and plain" statement of a cause of action.
IV. DISCUSSION
At the outset, Noonan challenges the claims brought against him in his official capacity under Federal Rule of Civil Procedure 12(b)(1) for lack of subject matter jurisdiction. (Doc 7, at 3). He argues that any claims brought against him in his official capacity are barred by the Eleventh Amendment. (Id.)
Section 1983 allows a party to bring suit against a "person" acting "under color" of law. 42 U.S.C. § 1983. In cases of suits against state officials sued in their official capacities, the Supreme Court has held that such "official capacity" parties are not "persons" under § 1983. See Melo v. Hafer, 912 F.2d 628, 634 (3d Cir. 1990) (citing Will v. Michigan Dep't of State Police, 491 U.S. 58, 109 S. Ct. 2304, 2312 (1989)). As such, a party sued in his official capacity is not a person capable of being sued under § 1983. Id.
Thus, as Palmer concedes in her brief, the claims brought against Noonan in his official capacity are barred by the Eleventh Amendment and should be dismissed. Accordingly, we will now turn to the claims brought against Noonan in his individual capacity.
A. Supervisory Liability and Failure to Train Claims
Palmer maintains that her constitutional rights were violated due to Noonan's failure to train, supervise and discipline members of the PSP, and due to his developing, maintaining, or approving a policy of "encouraging members of the PSP to believe that they could violate the constitutional rights of Plaintiff with impunity." (Doc. 9, at 12). Noonan argues that the complaint fails to allege any facts showing his personal involvement in the incidents that occurred, or that he knew it was occurring. We agree with the defendant, and recommend that the claims against Noonan in Counts III, IV, and V be dismissed.
Palmer's failure to train and supervise claims essentially mirror a claim for municipal liability under Monell v. Dep't of Social Servs., 436 U.S. 658 (1978). She alleges that Noonan's failure to train members of the PSP, along with his development or approval of deficient policies, led to the violation of her constitutional rights.
Under Monell, a municipality will be held liable under § 1983 for a constitutional injury that directly resulted from the municipality's policy, custom or practice. Monell, 436 U.S. at 695. When the allegation is one of a failure to train officers, there will be liability "only when that failure amounts to deliberate indifference to the rights of persons with whom the [officers] come into contact." City of Canton v. Harris, 489 U.S. 379, 388 (1989). A plaintiff must show:
Both contemporaneous knowledge of the offending incident or knowledge of a prior pattern of similar incidents and circumstances under which the supervisor's actions or inaction could be found to have communicated a message of approval to the offending subordinate. See Bonenberger v. Plymouth Township, 132 F.3d 20, 25 (3d Cir.1997).Montgomery v. De Simone, 159 F.3d 120, 126-27 (3d Cir. 1998).
In the instant case, we have what appears to be a Monell-type claim brought against an individual, rather than a municipality. The Court of Appeals for the Third Circuit in Sample v. Diecks, 885 F.2d 1099 (3d Cir. 1989), set forth the standard to be applied in such a case:
Although the issue here is one of individual liability rather than of the liability of a political subdivision, we are confident that, absent
official immunity, the standard of individual liability for supervisory public officials will be found to be no less stringent than the standard of liability for the public entities that they serve. In either case, a "person" is not the "moving force [behind] the constitutional violation" of a subordinate, City of Canton, 109 S. Ct. at 1205, unless that "person"—whether a natural one or a municipality—has exhibited deliberate indifference to the plight of the person deprived. See Lipsett v. University of Puerto Rico, 864 F.2d 881, 902 (1st Cir.1988).Sample, 885 F.2d at 1117-18. The Court went on to state that deliberate indifference "will ordinarily be demonstrated by evidence that the supervisory official failed to respond appropriately in the face of an awareness of a pattern of such injuries." Id. at 1118.
These principles apply with particular force to Monell-style claims like the one made here which are premised upon an alleged failure to train. In this setting, we have found that:
In cases where a plaintiff is predicating a Monell claim on an alleged failure to train officers or other employees, the Third Circuit has further explained:
a . . . failure to train police officers only gives rise to a constitutional violation when that failure amounts to deliberate indifference to the rights of persons with whom the police come into contact. City of Canton, Ohio v. Harris, 489 U.S. 378, 388, 109 S.Ct. 1197, 103 L.Ed.2d 412 (1989). We have held that a failure to train, discipline or control can only form the basis for section 1983 . . . liability if the plaintiff can show both contemporaneous knowledge of the offending incident or knowledge of a prior pattern of similar incidents and circumstances under which the supervisor's actions or inaction could be found to have communicated a message
of approval to the offending subordinate. See Bonenberger v. Plymouth Township, 132 F.3d 20, 25 (3d Cir.1997).
Hunter v. Prisbe, 984 F. Supp. 2d 345, 354-55 (M.D. Pa. 2013).
Montgomery v. De Simone, 159 F.3d 120, 126-27 (3d Cir.1998). It is "only where a failure to train reflects a 'deliberate' or 'conscious' choice . . . can a [defendant] be liable for such a failure under § 1983." Harris, 489 U.S. at 389, 109 S.Ct. 1197. Thus, where Monell claims are based upon an alleged failure to train officers, the . . . training program must be so inadequate that "in light of the duties assigned to specific officers or employees the need for more or different training is so obvious, and the inadequacy [of the current training] so likely to result in the violation of constitutional rights, that the policy makers . . . can reasonably be said to have been deliberately indifferent to the need." Id. at 390, 109 S.Ct. 1197.
Furthermore, to set forth a successful § 1983 claim against a state official on a supervisory liability theory, the facts in the complaint must allege that the defendant had some personal involvement in the alleged wrong. See Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1988). This may be shown by allegations that the defendant personally directed the wrong, or by actual knowledge and acquiescence. Id.; see also Diaz v. Rucker, 2016 WL 8735711, at *4 (E.D. Pa. 2016). However, such allegations must be made with particularity. Rode, 845 F.2d 1207.
Turning to the plaintiff's allegations in the instant case, it is clear that in its current form her complaint has not met her burden to survive the motion to dismiss with respect to these claims. Palmer's complaint alleges no factual allegations of any personal involvement by Noonan. Rather the complaint merely asserts that Noonan "knew or should have known that Plaintiff's rights were being violated." (Compl., ¶ 72). Palmer also makes the bare assertion that Noonan had a "policy" of encouraging members of PSP to believe they could violate the constitutional rights of others. This assertion, which is unadorned by any well-pleaded facts, is not enough to raise the inference that Noonan had actual knowledge of or acquiesced in the alleged harassment and retaliation, nor does Palmer allege that Noonan was aware of a previous pattern of similar conduct. Additionally, Palmer does not allege any circumstances under which Noonan's action or inaction could constitute approval of the misconduct perpetrated against her. There are simply no factual allegations that raise an inference of Noonan's personal involvement in any of the misconduct, or that Noonan was the "moving force" behind the misconduct that led to the alleged violation of Palmer's rights. Therefore, we recommend that Counts III, IV, and V be dismissed against Defendant Noonan.
B. Conspiracy Claim
Palmer also contends that Noonan conspired with the other named defendants to violate her constitutional rights by ignoring the alleged misconduct or by failing to prevent the misconduct or intervene on her behalf. The complaint purports to assert the conspiracy claim under 42 U.S.C. §§ 1983 and 1985. While Palmer does not specify the particular provision of § 1985 upon which she bases her conspiracy claim, both parties have proceeded in their briefs as though the conspiracy claim has been brought pursuant to § 1985(3). Upon review of the allegations in the complaint, Palmer cannot maintain her conspiracy claim against Noonan under either theory.
In addition to relying on the parties briefs, we note that neither subsection 1 of § 1985 ("Preventing officer from performing duties") nor subsection 2 of § 1985 ("Obstructing justice; intimidating party, witness or juror") would be applicable in the instant case.
In order to state a claim for civil conspiracy under 42 U.S.C. § 1983, a plaintiff must demonstrate (1) the existence of a conspiracy involving state action and (2) a deprivation of civil rights in furtherance of the conspiracy by a party to the conspiracy. Rosembert v. Borough of East Lansdowne, 14 F. Supp. 3d 631, 647 (E.D. Pa. 2014). A plaintiff must allege that there was an agreement or a meeting of the minds to violate his constitutional rights. Id. "Only allegations of conspiracy which are particularized, such as those addressing the period of the conspiracy, the object of the conspiracy, and certain actions of the alleged conspirators taken to achieve that purpose, will be deemed sufficient." Labalokie v. Capitol Area Intermediate Unit, 926 F. Supp. 503, 508-09 (M.D. Pa. 1996) (quoting Loftus v. SEPTA, 843 F. Supp. 981, 986-87 (E.D. Pa. 1994)).
Palmer's conspiracy claim against Noonan fails to meet the requirements of § 1983. While the complaint alleges, albeit vaguely, the relevant time period and the object of the alleged conspiracy, there are simply no facts to suggest that there was a "meeting of the minds" between Noonan and any of the other defendants. The complaint states that the "Defendants directly, indirectly, tacitly and/or knowingly conspired" to violate Palmer's First, Fourth, and Fourteenth Amendment rights. Nowhere in the complaint does Palmer allege the existence of any agreement or understanding on the part of Noonan or any of the other defendants to violate her rights. Additionally, Palmer asserts only a bare allegation that Noonan failed to supervise and discipline his employees. This is not enough to infer that Noonan acted in furtherance of any alleged conspiracy. Therefore, Palmer's § 1983 conspiracy claim fails to meet the requisite pleading requirements and should be dismissed.
Nor do Palmer's allegations meet the requirements for a conspiracy claim brought pursuant to § 1985(3). Section 1985(3) provides that:
If two or more persons in any State or Territory conspire or go in disguise on the highway or on the premises of another, for the purpose of depriving, either directly or indirectly, any person or class of persons of the equal protection of the laws, or of equal privileges and immunities under the laws; ..., the party so injured or deprived may have an action for the recovery of damages occasioned by such injury or deprivation, against any one or more of the conspirators.42 U.S.C. § 1985(3).
The reach of § 1985(3) has been carefully defined by the courts. As the United States Court of Appeals for the Third Circuit has observed, "in Griffin v. Breckenridge, 403 U.S. 88 (1971) the Supreme Court clarified that the reach of section 1985(3) is limited to private conspiracies predicated on 'racial, or perhaps otherwise class based, invidiously discriminatory animus.' Id. at 102." Lake v. Arnold, 112 F.3d 682, 685 (3d Cir.1997). Thus:
Section 1985(3) permits an action to be brought by one injured by a conspiracy formed "for the purpose of depriving, either directly or indirectly, any person or class of persons of the equal protection of the laws, or of equal privileges and immunities under the laws." 42 U.S.C. § 1985(3). In a line of cases ..., the Supreme Court has made clear what a plaintiff must allege to state a claim under § 1985(3): "(1) a conspiracy; (2) for the purpose of depriving, either directly or indirectly, any person or class of persons of the equal protection of the laws, or of equal privileges and immunities under the laws; and (3) an act in furtherance of the conspiracy; (4) whereby a person is injured in his person or property or deprived of any right or privilege of a citizen of the United States." United Bhd. of Carpenters & Joiners v. Scott, 463 U.S. 825, 828-29,(1983) (citing Griffin, 403 U.S. at 102-03).Farber v. City of Paterson, 440 F.3d 131, 134 (3d. Cir.2006). See Lake, 112 F.3d at 685. "[B]ecause § 1985(3) requires the 'intent to deprive of equal protection, or equal privileges and immunities,' a claimant must allege 'some racial, or perhaps otherwise class-based, invidiously discriminatory animus behind the conspirators' action' in order to state a claim." Farber, 440 F.3d at 135 (citations omitted, emphasis in original). In practice, "[t]here are two distinct aspects to the 'class-based invidiously discriminatory animus' which, ..., will support a § 1985(3) claim-the first is defined by form, and the second by function. Thus, a plaintiff must allege both that the conspiracy was motivated by discriminatory animus against an identifiable class and that the discrimination against the identifiable class was invidious." Id.
Yet, while proof of class-based discrimination is the gravamen of a § 1985(3) claim, "[t]here are no precise parameters defining the boundaries of 'class' within the meaning of section 1985(3). 'The best that can be said of § 1985(3) jurisprudence thus far is that it has been marred by fits and starts, plagued by inconsistencies, and left in flux by the Supreme Court.' Trautz v. Weisman, 819 F.Supp. 282, 291 (S.D.N.Y.1993)." Lake, 112 F.3d at 685. Thus, while "a class for purposes of section 1985(3) must be 'something more than a group of individuals who share a desire to engage in conduct that the § 1985(3) defendant disfavors,' " the courts have "strictly construed" what constitutes a class under this civil rights statute. Id. In sum, proof of: (1) a conspiracy; (2) motivated by class-based animus is the essence of a § 1985(3) claim.
Initially, it is worth noting once more that Palmer's complaint sets forth no factual allegations that would raise even the slightest inference that Noonan had any sort of agreement or understanding to conspire with the other defendants to violate Palmer's constitutional rights. Furthermore, Palmer makes no allegation of any class-based, invidious discriminatory reason for the alleged conspiracy against her, as is required by § 1985(3). She simply asserts in a conclusory manner that Noonan and the other defendants conspired against her to deprive her of her First, Fourth, and Fourteenth Amendment rights. No matter how many times it is repeated, this bare, conclusory statement is simply not enough to sustain a conspiracy claim under § 1985(3). As such, we recommend that the conspiracy claim in Count VI of the complaint be dismissed as to Defendant Noonan.
C. State Law Claim for Intentional Infliction of Emotional Distress
Lastly, Palmer includes Noonan in her state law claim for intentional infliction of emotional distress in Count VIII of the complaint. Palmer alleges that the conduct of the defendants was extreme and outrageous, and caused her severe emotional distress. Pennsylvania law sets exacting standards for claims of intentional infliction of emotional distress.
Under Pennsylvania law, the elements of a claim for intentional infliction of emotional distress are as follows: "(1) the conduct [of the defendant] must be extreme and outrageous; (2) it must be intentional or reckless; (3) it must cause emotional distress; [and] (4) that distress must be severe." Hoy v. Angelone, 691 A.2d 476, 482 (Pa.Super.Ct.1997). This claim also requires an allegation of some type of physical injury, harm or illness related to the distress. Robinson v. Family Dollar, Inc., No. 14-3189, 2015 WL 3400836 (E.D.Pa. May 27, 2015) (citing Corbett v. Morgenstern, 934 F.Supp. 680, 684 (E.D.Pa.1994)). It is difficult to make out a cognizable claim for intentional infliction of emotional distress, in no small part because "the conduct must be 'so extreme in nature as to go beyond all possible bounds of decency such that it would be regarded as utterly intolerable to civilized society.' " Regan v. Twp. of Lower Merion, 36 F.Supp.2d 245, 251 (E.D.Pa.1999).Alston v. Pennsylvania State Univ., No. 1:14-CV-2480, 2015 WL 9660019, at *11 (M.D. Pa. June 9, 2015), report and recommendation adopted, No. 14-CV-02480, 2016 WL 74795 (M.D. Pa. Jan. 7, 2016), aff'd, 685 F. App'x 158 (3d Cir. 2017).
As we have already noted, Palmer has not alleged any conduct, certainly none that can be characterized as either extreme or outrageous, on the part of Noonan that would give rise to personal liability on his part a claim against him for intentional infliction of emotional distress. Thus, this state law claim cannot survive the instant motion to dismiss, and we recommend that Count VIII of the complaint be dismissed as to Noonan.
V. RECOMMENDATION
Accordingly, for the foregoing reasons, IT IS RECOMMENDED THAT the Defendant's motion to dismiss the plaintiff's complaint (Doc. 6) be GRANTED. IT IS FURTHER RECOMMENDED THAT the plaintiff be granted leave to amend the complaint in order to address the pleading deficiencies that we have identified. The Parties are further placed on notice that pursuant to Local Rule 72.3:
Any party may object to a magistrate judge's proposed findings, recommendations or report addressing a motion or matter described in 28 U.S.C. § 636 (b)(1)(B) or making a recommendation for the disposition of a prisoner case or a habeas corpus petition within fourteen (14) days after being served with a copy thereof. Such party shall file with the clerk of court, and serve on the magistrate judge and all parties, written objections which shall specifically identify the portions of the proposed findings, recommendations or report to which objection is made and the basis for such objections. The briefing requirements set forth in Local Rule 72.2 shall apply. A judge
shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made and may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge. The judge, however, need conduct a new hearing only in his or her discretion or where required by law, and may consider the record developed before the magistrate judge, making his or her own determination on the basis of that record. The judge may also receive further evidence, recall witnesses or recommit the matter to the magistrate judge with instructions.
Submitted this 5th day of October, 2018.
S/Martin C . Carlson
Martin C. Carlson
United States Magistrate Judge