Evancho v. Fisher

Opinions of the United

2005 Decisions States Court of Appeals

for the Third Circuit

9-12-2005

Evancho v. Fisher

Precedential or Non-Precedential: Precedential

Docket No. 03-2123

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PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_________________

No. 03-2123

_________________

KAREN E. EVANCHO,

Appellant

v.

D. MICHAEL FISHER, ATTORNEY GENERAL

FOR THE COMMONWEALTH OF

PENNSYLVANIA; OFFICE OF

ATTORNEY GENERAL OF THE

COMMONWEALTH OF PENNSYLVANIA

_________________

On Appeal from an Order of the United States District Court

for the Western District of Pennsylvania,

(Civil Action Number 02-cv-01799)

District Judge: Honorable William L. Standish

_________________

Before: MICHEL, Chief Judge, OBERDORFER and

STAFFORD, Senior District Judges.1

(Submitted: September 12, 2005)

1

Honorable Paul R. Michel serves as Chief Judge of the U.S.

Court of Appeals for the Federal Circuit; Honorable Louis F.

Oberdorfer is a senior judge of the U.S. District Court for the

District of Columbia; Honorable William H. Stafford is a senior

judge of the U.S. District Court for the Northern District of

Florida.

Gary M. Davis, Esquire

1700 Lawyers Building

428 Forbes Avenue

Pittsburgh, PA 15219

Counsel for Appellant

J. Bart DeLone, Esquire

Senior Deputy Attorney General

Office of Attorney General

Appellate Litigation Section

15th Floor Strawberry Square

Harrisburg, PA 17120

Counsel for Appellees

__________________

OPINION OF THE COURT

___________________

MICHEL, Chief Judge

Karen E. Evancho (“Evancho”) appeals the United States

District Court for the Western District of Pennsylvania’s dismissal

without prejudice of her amended complaint against D. Michael

Fisher, Attorney General for the Commonwealth of Pennsylvania2, in

his individual capacity, for failure to state a civil rights claim under

42 U.S.C. § 1983 on which relief may be granted. Evancho v. Fisher,

No. 02-1799 (W.D. Pa. Mar. 26, 2003). On July 18, 2005, the judges

of this special panel were designated to hear and decide this appeal by

Chief Justice William H. Rehnquist because all of the judges on the

2

We take judicial notice of the fact that D. Michael Fisher no

longer serves as Attorney General for the Commonwealth of

Pennsylvania. His term of service was from January 21, 1997, to

December 15, 2003, during the time when the events underlying this

case occurred. Tom Corbett assumed the position of Attorney

General on January 18, 2005. In this opinion, however, we designate

D. Michael Fisher as “Attorney General Fisher.”

2

Third Circuit are recused. On September 12, 2005, the appeal was

submitted without oral argument because the facts and legal

arguments were adequately presented in the briefs and record. See

Fed. R. App. P. 34(a)(2)(C). Because Evancho failed to adequately

plead under the liberal notice requirements of Rule 8(a) of Federal

Rules of Civil Procedure that Attorney General Fisher was personally

involved in her transfer to a lesser position in the Commonwealth of

Pennsylvania Bureau of Narcotics Investigation and Drug Control

(“Bureau”), the alleged violation of her civil rights, we affirm.

I. Factual Background and Procedural History

Evancho was employed by the Bureau from 1984 until

September 18, 2000. In 1993, she became a regional supervisor for

the Greensburg Office of the Bureau and supervised approximately

eighteen agents.

In 1997, the Regional Director of the Bureau assigned

Evancho to serve as the custodian of the evidence room. Twice,

Evancho requested that an inventory of the evidence room be taken,

once when she learned that both evidence records had been altered

and money was missing and again when she discovered additional

money as well as drugs were missing. The Regional Director,

however, denied both requests and eventually relieved her of her

custodial responsibilities.

Over Memorial Day weekend in 1998, the evidence room was

burglarized, triggering investigations both internally and by the

Pennsylvania State Police. Evancho assisted in these investigations.

Specifically, she disclosed her prior findings with respect to the

evidence room and reported her management’s failure to investigate

the altered records and missing funds and drugs. Pursuant to these

investigations, the Regional Director was fired, the Western Zone

Commander retired, and the prior custodian of the evidence room and

another agent were suspended.

In August of 1998, Evancho was transferred to the position of

supervising agent of the Financial Investigative Unit (“FIU”), where

she was charged with supervising only two other agents. Evancho

neither applied for nor received advance notice of the transfer. She

alleges that this position was a “dead end job” involving “an

outrageous and unaccomplishable workload.”

In her new assignment, she was given significantly lower

performance evaluations than at any other time in her career with the

3

Bureau. Evancho was also placed in counseling and was required to

undergo interim evaluations. She began to suffer from severe

depression and anxiety due to her work circumstances. On

September 18, 2000, she left her job for medical and psychological

reasons and has not been able to return. In her complaint, Evancho

alleges that her “transfer was carried out by underlings reporting

directly to the attorney general and/or by the attorney general himself

for the explicit purpose of either setting [her] up for dismissal or, it

[sic] that were not successful, making her work life so miserable as

to force her resignation.”

On September 12, 2002, four years after her transfer, Evancho

filed a writ of summons in the Court of Common Pleas of Allegheny

County against Attorney General Fisher officially and individually

and the Office of the Attorney General (collectively “defendants”).

On October 10, 2002, she filed a complaint in state court. On

October 23, 2002, defendants removed the case to federal district

court. On October 25, 2002, Evancho filed an amended complaint,

claiming that defendants violated the Pennsylvania Whistleblower

Law, 43 Pa. Code §§ 1421-1428, and her civil rights under § 1983 in

retaliation for her whistleblowing activities. On November 8, 2002,

defendants filed a motion to dismiss for failure to state a claim. On

March 26, 2003, the district court granted the defendants’ motion as

to both claims.

First, the district court observed that Evancho failed to specify

any acts committed by Attorney General Fisher individually. In

particular, the district court noted that “the only mention of Attorney

General Fisher in Evancho’s amended complaint appears at paragraph

35 [sic], in which she alleges that her transfer to the FIU ‘was carried

out by underlings reporting directly to the attorney general and/or by

the attorney general himself for the explicit purpose of either setting

[plaintiff] up for dismissal or, if that were not successful, making her

work life so miserable as to force her resignation.’” Evancho, slip op.

at 9 (alteration in original). The district court also observed:

“Plaintiff even admits in her brief that she ‘simply does not have firm

evidence of Michael Fisher’s individual involvement.’” Id. Thus, the

district court concluded that Evancho’s allegations against Attorney

General Fisher in his individual capacity do not satisfy the heightened

pleading standard to which claims against individual government

defendants were historically subject. The district court specifically

stated: “Plaintiff’s conclusory allegations in [paragraph] 25 do not

satisfy the heightened pleading standard to which claims against

individual government defendants are subject.” Id. The district court

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therefore dismissed Evancho’s amended complaint against Attorney

General Fisher individually without prejudice, allowing Evancho to

amend her complaint setting forth her allegations against Attorney

General Fisher with greater specificity. Id., slip op. at 10.

Second, the district court noted that Evancho conceded that

her civil rights claim against Attorney General Fisher in his official

capacity and the Office of the Attorney General is barred by Will v.

Michigan Department of State Police, 491 U.S. 58, 69 (1989), which

held that neither states nor state officials sued in their official

capacities for money damages are “persons” within the meaning of

§ 1983. Accordingly, the district court dismissed Evancho’s claim

against Attorney General Fisher in his official capacity and the Office

of the Attorney General. Evancho timely appealed.

II. Jurisdiction and Standard of Review

We have subject matter jurisdiction pursuant to 28 U.S.C.

§ 1291 (2000). Our standard of review of the district court’s

dismissal under Rule 12(b)(6) of the Federal Rules of Civil Procedure

is plenary. See Gallo v. City of Philadelphia, 161 F.3d 217, 221 (3d

Cir. 1998). When considering a Rule 12(b)(6) motion, we are

required to accept as true all allegations in the complaint and all

reasonable inferences that can be drawn therefrom, and view them in

the light most favorable to the plaintiff. Rocks v. City of

Philadelphia, 868 F.2d 644, 645 (3d Cir. 1989); D.P. Enter. Inc. v.

Bucks County Cmty. Coll., 725 F.2d 943, 944 (3d Cir. 1984). A Rule

12(b)(6) motion should be granted “if it appears to a certainty that no

relief could be granted under any set of facts which could be proved.”

D.P. Enter. Inc., 725 F.2d at 944; Richardson v. Pa. Dep’t of Health,

561 F.2d 489, 492 (3d Cir. 1977). However, a court need not credit

either “bald assertions” or “legal conclusions” in a complaint when

deciding a motion to dismiss. In re Burlington Coat Factory Sec.

Litig., 114 F.3d 1410, 1429-30 (3d Cir. 1997) (quoting Glassman v.

Computervision Corp., 90 F.3d 617, 628 (1st Cir. 1996)).

III. Discussion

On appeal, Evancho challenges only the district court’s

dismissal of her complaint against Attorney General Fisher in his

individual capacity and only as to her § 1983 claim, not her claim

under the Pennsylvania Whistleblower Law. She first argues that it

was incorrect for the district court to apply a heightened particularity

requirement beyond the simple notice pleading standard required by

Rule 8, citing Leatherman v. Tarrant County Narcotics Intelligence

5

and Coordination Unit, 507 U.S. 163 (1993), Abbott v. Latshaw, 164

F.3d 141 (3d Cir. 1998), and Weston v. Commonwealth of

Pennsylvania, 251 F.3d 420 (3d Cir. 2001). Under Rule 8, she

contends that her amended complaint sets forth sufficient detail to

show that her § 1983 claim against Attorney General Fisher

individually may have merit and to enable Attorney General Fisher to

frame an answer. Hence, Evancho argues that we should reverse the

district court’s dismissal of her amended complaint against Attorney

General Fisher in his individual capacity, even though it was without

prejudice and she declined to further amend.

Attorney General Fisher does not respond to Evancho’s

argument concerning the correct pleading standard. Attorney General

Fisher simply argues that Evancho’s amended complaint fails to state

a § 1983 claim under the liberal notice standard of Rule 8.

Specifically, he charges that Evancho’s amended complaint does not

allege facts legally adequate to support her claim, but instead relies

solely on conclusory, boilerplate language. As a result, Attorney

General Fisher contends that Evancho’s amended complaint lacks

merit and fails to provide adequate notice to permit an answer to be

framed. As an alternative ground of affirmance, Attorney General

Fisher asserts that Evancho’s § 1983 claim is barred by the applicable

statute of limitations. Accordingly, Attorney General Fisher

maintains that the district court properly dismissed Evancho’s

amended complaint against him individually.

A.

At the outset, we must determine whether Evancho is

obligated to satisfy the heightened pleading standard to which claims

against individual government defendants were historically subject or

whether she need only satisfy the more liberal notice pleading

requirements of Rule 8. In Leatherman, the Supreme Court addressed

the question of “whether a federal court may apply a ‘heightened

pleading standard’ – more stringent than the usual pleading

requirement of Rule 8(a) of the Federal Rules of Civil Procedure – in

civil rights cases alleging municipal liability.” 507 U.S. at 164. The

Supreme Court held that a federal court may not. Id. It noted that

Rule 8(a)(2) requires “a complaint [to] include only a short and plain

statement of the claim showing that the pleader is entitled to relief.”

Id. at 168. It also noted that Rule 9(b) imposes a particularity

requirement in two specific instances, but that municipal liability

under § 1983 was not one of them. “[T]he Federal Rules do address

in Rule 9(b) the question of the need for greater particularity in

pleading certain actions, but do not include among the enumerated

6

actions any reference to complaints alleging municipal liability under

§ 1983. Expressio unius est exclusio alterius.” Id. Thus, the

Supreme Court reasoned:

Perhaps if Rules 8 and 9 were rewritten today,

claims against municipalities under § 1983 might be

subjected to the added specificity requirement of Rule

9(b). But that is a result which must be obtained by

the process of amending the Federal Rules, and not by

judicial interpretation. In the absence of such an

amendment, federal courts and litigants must rely on

summary judgment and control of discovery to weed

out unmeritorious claims sooner rather than later.

507 U.S. at 168-69.

Since Leatherman, which was decided in 1993, the Third

Circuit has applied the more liberal notice pleading standard set forth

in Rule 8(a) in civil rights cases.

See, e.g., Abbott, 164 F.3d at 148 (involving § 1983 complaint filed

by a husband against his ex-wife, a city constable, and three police

officers); Weston, 251 F.3d at 429 (involving a hostile work

environment sexual harassment complaint filed by an employee

against his state employer and his co-workers). In Abbott, the Third

Circuit stated that “the complaint easily satisfied the standards of

notice pleading; no more is required of a plaintiff in § 1983 cases.”

164 F.3d at 148. Similarly, in Weston, the Third Circuit explained:

“[I]n Leatherman v. Tarrant County, the Court . . . rejected the

suggestion that a heightened pleading standard – more stringent than

the usual pleading requirements of Rule 8(a) – should apply in civil

rights cases.” 251 F.3d at 429 (internal quotation omitted). We view

Abbott as controlling because it was a § 1983 case. While

Leatherman arguably was limited to § 1983 cases involving

municipal liability, no such limitation appears in Abbott. That

decision treats all § 1983 cases alike. The same can be said for

Weston, despite the fact that it was not a § 1983 case.

The Supreme Court recently reaffirmed the application of the

liberal notice pleading standard of Rule 8 in Swierkiewicz v. Sorema,

534 U.S. 506 (2002). In the context of an employment discrimination

complaint filed by an employee against a former employer, the

Supreme Court reasoned that a heightened pleading standard conflicts

with Rule 8(a):

7

Th[e] simplified notice pleading standard relies on

liberal discovery rules and summary judgment

motions to define disputed facts and issues and to

dispose of unmeritorious claims. The provisions for

discovery are so flexible and the provisions for

pretrial procedure and summary judgment so

effective, that attempted surprise in federal practice is

aborted very easily, synthetic issues detected, and the

gravamen of the dispute brought frankly into the open

for the inspection of the court. Rule 8(a)’s simplified

pleading standard applies to all civil actions, with

limited exceptions. Rule 9(b), for example, provides

for greater particularity in all averments of fraud or

mistake. This Court, however, has declined to extend

such exceptions to other contexts.

Id. at 513 (internal quotations and citations omitted). Significantly,

the Supreme Court stated that “complaints in these cases [referring to

employment discrimination], like most other complaints, must satisfy

only the simple requirements of Rule 8(a).” Id. (emphasis added).

We conclude that Evancho is correct that her amended

complaint need only satisfy Rule 8(a) and that the district court judge

erred in applying the pre-1993 heightened standard. Notably, the

district court judge did not acknowledge the impact of Leatherman or

recognize that the Third Circuit has followed that decision since

1993, applying Rule 8 instead of a heightened standard. Moreover,

the district court did not cite, much less distinguish, Leatherman,

Abbott, Weston, or Swierkiewicz. Nevertheless, we conclude that the

district court’s error was harmless because, even on the most

favorable view, Evancho’s amended complaint utterly fails to meet

the liberal notice pleading standard of Rule 8(a).

B.

“A[n individual government] defendant in a civil rights action

must have personal involvement in the alleged wrongdoing; liability

cannot be predicated solely on the operation of respondeat superior.

Personal involvement can be shown through allegations of personal

direction or of actual knowledge and acquiescence.” Rode v.

Delarciprete, 845 F.2d 1195, 1207 (3d Cir. 1988).

Here, under the liberal notice pleading standard of Rule 8(a),

Evancho’s amended complaint fails to allege facts that, if proven,

8

would show Attorney General Fisher’s personal involvement in

Evancho’s transfer. The Third Circuit has held that a civil rights

complaint is adequate where it states the conduct, time, place, and

persons responsible. Boykins v. Ambridge Area Sch. Dist., 621 F.2d

75, 80 (3d Cir. 1980) (citing Hall v. Pa. State Police, 570 F.2d 86, 89

(3d Cir. 1979)). Here, Evancho’s amended complaint fails to include

any of those elements. She did not allege any facts indicating that

Attorney General Fisher personally directed her transfer. Her

amended complaint likewise does not contain even a remote

suggestion that Attorney General Fisher had contemporaneous,

personal knowledge of her transfer and acquiesced in it. Indeed, she

did not identify the date her transfer was ordered, who ordered it, the

date or means by which she was informed of the transfer, who told

her that she was being transferred, or where that communication was

made. Nor did she specify that any named “underling” of Attorney

General Fisher orchestrated her transfer. As such, we conclude that

Evancho’s amended complaint does not in any way meet the Third

Circuit’s standard for a legally adequate civil rights complaint.

We agree with the government that the facts here are similar

to those in Gay v. Petsock, 917 F.2d 768 (3d Cir. 1990). There, a

prisoner filed suit against the prison superintendent and two

correction officers, alleging that the defendants acted in concert to

remove legal materials from his cell denying him access to the courts.

The district court dismissed the case against the superintendent for

failure to state a claim because only one of the correction officers

ordered the prisoner’s legal materials to be removed. The district

court thus considered the prisoner’s claim against the superintendent

to be based upon the doctrine of respondeat superior. Id. at 771. The

Third Circuit affirmed, reasoning that there was “nothing in the

record to suggest that [the superintendent] was involved in the acts

complained of or that they were done with his knowledge and

acquiescense.” Id.

Like the superintendent in Gay, Evancho has not alleged any

facts to indicate that Attorney General Fisher individually directed

Evancho’s transfer or knew of and acquiesced in it. Implicitly, her

amended complaint, similar to the prisoner’s complaint in Gay, rests

on the doctrine of respondeat superior, contrary to Rode. Thus, by

analogy to Gay, we necessarily must conclude that the district court’s

dismissal of Evancho’s amended complaint was proper.

In contrast to the personal involvement that the Third Circuit

rightly requires for a civil rights complaint, Evancho’s amended

9

complaint merely hypothesizes that Attorney General Fisher may

have been somehow involved simply because of his position as the

head of the Office of the Attorney General. This conclusion,

however, is not a reasonable inference to be drawn from the facts

alleged in Evancho’s complaint. The record shows that Evancho had

at least three levels of supervision within the Bureau. Her complaint

and briefs, in fact, particularly mention a Regional Commander and

a Western Zone Commander. Outside the Bureau, three state entities

separate the Bureau from the Office of the Attorney General.

Specifically, the Bureau falls under the Criminal Investigations

Section, which falls under the Criminal Law Division, which falls

under the Unit of First Deputy Attorney General. Each of these

separate entities, in turn, operates under the supervision of a

managerial head. Given this hierarchy, the decision to transfer

Evancho presumably was made by mid-level management officials

within the Bureau itself. It is unlikely that her transfer even involved

persons at the level of the Criminal Investigations Unit, one step

above the Bureau, let alone an “underling” of the Attorney General or

the Attorney General Fisher personally.

Moreover, it is not possible for Attorney General Fisher, in his

individual capacity, to frame an answer to Evancho’s amended

complaint because it alleges no specific act by him relating to her

transfer. Paragraph 25 of her amended complaint states: “The transfer

was carried out by underlings reporting directly to the attorney

general and/or by the attorney general himself for the explicit purpose

of either setting Agent Evancho up for dismissal or, if that were not

successful, making her life so miserable as to force her resignation.”

Neither this allegation nor any other in her amended complaint

indicate any actions taken by Attorney General Fisher himself, or his

“underlings,” to engineer her transfer. For example, she does not

allege when the Attorney General Fisher made the decision to transfer

her, what steps he took to effect the transfer, whom he instructed to

prepare the necessary transfer forms, or who signed those forms.

Without addressing any of these facets of her transfer in her amended

complaint, Evancho’s allegation that Attorney General Fisher himself

and/or his “underlings” carried out her transfer is simply a “bald

assertion,” which a court is not required to credit in deciding a motion

to dismiss.

While we appreciate that the discovery process is designed to

enable a plaintiff like Evancho to undercover evidence that may

support the allegations set forth in a complaint, a court is not required

to assume that a plaintiff can prove facts not alleged. See City of

10

Pittsburgh v. West Penn Power Co., 147 F.3d 256, 263 n.13 (3d Cir.

1998). Had Evancho alleged actual facts, as opposed to conclusions,

connecting Attorney General Fisher to her transfer, her amended

complaint might satisfy the liberal notice pleading standard of Rule

8(a). However, under any reasonable reading of her amended

complaint, she did not do so. Accordingly, we agree with Attorney

General Fisher that Evancho’s civil rights allegation as to him

individually amounts to nothing more than conclusory, boilerplate

language insufficient to show that she is or may be entitled to relief

if her allegations are proven.3

IV. Conclusion

Because Evancho’s amended complaint against Attorney

General Fisher individually fails to meet the liberal notice pleading

requirements of Rule 8(a), we conclude that the district court

correctly dismissed under Rule 12(b)(6) her amended complaint for

failure to state a claim upon which relief can be granted.

Accordingly, we affirm the district court’s dismissal without

prejudice of Evancho’s amended complaint.

3

Since Evancho’s claim does not meet the liberal notice

pleading requirements set forth in Rule 8(a), we need not, and do not,

reach Attorney General Fisher’s assertion that Evancho’s § 1983

claim is barred by the statute of limitations.

11