United States District Court, Eastern District of Pennsylvania
November 29, 1999
DONALD S. SABATINI
ROBERT J. REINSTEIN, DEAN OF TEMPLE UNIVERSITY SCHOOL OF LAW AND VICE PRESIDENT, TEMPLE UNIVERSITY AND TEMPLE UNIVERSITY SCHOOL OF LAW AND TEMPLE UNIVERSITY
The opinion of the court was delivered by: Ludwig, District Judge.
ORDER — MEMORANDUM
AND NOW, this 24th day of November, 1999, defendants'
partial motion to dismiss counts III, IV, VII, and VIII of the
amended complaint, filed pro se, is granted.*fn1
Fed.R.Civ.P. 12(b)(6).*fn2 Jurisdiction is federal question.
28 U.S.C. § 1331.
In this § 1983 case, defendants are alleged to have
violated plaintiff's First and Fourteenth Amendment rights.
Factually, according to the amended
complaint, plaintiff was prevented by campus police from
distributing leaflets critical of Temple Law School at its
graduation ceremonies in May of 1997 and 1998.*fn3
Counts III and VII describe the claims as due process
violations under the Fourteenth Amendment.*fn4 "Defendants
impermissibly infringed upon Plaintiff's protected Liberty
Interest (under the Due Process Clause) in lawful, free exercise
of his First Amendment rights to Freedom of Speech, Freedom of
Assembly, Freedom of Petition, and Freedom of Association."
Amended Complaint at ¶ 62. This wording suggests that plaintiff's
inability to exercise his First Amendment rights constituted a
substantive due process violation.
These claims come within the contours of the First, not
the Fourteenth Amendment.*fn5 As noted by the Supreme Court,
"[w]here a particular Amendment `provides an explicit textual
source of constitutional protection' against a particular sort of
government behavior, `that Amendment, not the more generalized
notion of `substantive due process,' must be the
analyzing these claims.'" Albright v. Oliver, 510 U.S. 266, 273,
114 S.Ct. 807, 813, 127 L.Ed.2d 114 (1993) (quoting Graham v.
Connor, 490 U.S. 386, 395, 109 S.Ct. 1865, 1871, 104 L.Ed.2d 443
(1989). Here, plaintiff's allegations — preventing plaintiff from
distributing leaflets — plead a specific First Amendment
violation, and are properly denominated as such.
Plaintiff cites the recent decision in City of Chicago
v. Morales, 527 U.S. 41, 119 S.Ct. 1849, 144 L.Ed.2d 67 (1999),
for the proposition that a First Amendment violation can also
amount to a violation of substantive due process. Morales struck
down a Chicago criminal ordinance aimed at prohibiting gang
members from loitering in public places. However, Morales was not
decided on First Amendment grounds, but rather on the ground that
the ordinance was impermissibly vague under the due process clause
of the Fourteenth Amendment.*fn6 119 S.Ct. at 1857. ("the law
does not have a sufficiently substantial impact on conduct
protected by the First Amendment to render it unconstitutional.").
Due process is not implicated here.