Evancho v. Fisher, No. 03-2123.

• Court: United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
• Writing for the Court: Michel
• Citation: 423 F.3d 347
• Decision Date: 12 September 2005
• Docket Number: No. 03-2123.
• Parties: Karen E. EVANCHO, Appellant v. D. Michael FISHER, Attorney General for the Commonwealth of Pennsylvania; Office of Attorney General of the Commonwealth of Pennsylvania.

423 F.3d 347 Karen E. EVANCHO, Appellant
v.
D. Michael FISHER, Attorney General for the Commonwealth of Pennsylvania; Office of Attorney General of the Commonwealth of Pennsylvania. No. 03-2123. United States Court of Appeals, Third Circuit. September 12, 2005.

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Gary M. Davis, Pittsburgh, PA, for Appellant.

J. Bart DeLone, Senior Deputy Attorney General, Office of Attorney General, Appellate Litigation Section, Harrisburg, PA, for Appellees.

Before MICHEL, Chief Judge, OBERDORFER and STAFFORD, Senior District Judges.¹

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 Pennsylvania,² in his individual capacity,

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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 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 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

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[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 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, 109 S.Ct. 2304, 105 L.Ed.2d 45 (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.

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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...