                                                                                                                           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Precedential or Non-Precedential: Precedential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

                                    4
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
