United States District Court, W.D. Pennsylvania
November 15, 2005.
JOHANNA SHIGLE, Plaintiff,
MOUNT PLEASANT BOROUGH, et al., Defendants.
The opinion of the court was delivered by: THOMAS HARDIMAN, District Judge
Plaintiff Johanna Shigle (Shigle) filed this case pursuant to
42 U.S.C. § 1983, against the Mount Pleasant Borough (Borough),
the Mount Pleasant Borough Council (Council), and Michael Tabita
(Tabita). Shigle alleges that the Borough, the Council, and
Tabita violated her rights under the First and Fourteenth
Amendments to the Constitution. Defendants have filed a motion
for summary judgment, which is the subject of this Memorandum
II. Standard of Review
Summary judgment is required on an issue or a claim when "the
pleadings, depositions, answers to interrogatories and admissions
on file, together with the affidavits, if any, show that there is
no genuine issue as to any material fact and that the moving
party is entitled to a judgment as a matter of law."
Fed.R.Civ.P. 56(c); see also Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 250-52 (1986); Saldana v. Kmart Corp., 260 F.3d 228,
231-32 (3d Cir. 2001). An issue is "material" only if the factual dispute "might affect the
outcome of the suit under the governing law." Anderson,
477 U.S. at 248.
"Summary judgment procedure is properly regarded not as a
disfavorable procedural shortcut, but rather as an integral part
of the Federal Rules as a whole, which are designed to secure the
just, speedy and inexpensive determination of every action."
Celotex Corp. v. Catrett, 477 U.S. 317, 327 (1986) (internal
quotation marks omitted). The parties have a duty to present
evidence; neither statements of counsel in briefs nor speculative
or conclusory allegations satisfy this duty. Ridgewood Bd. of
Educ. v. N.E. for M.E., 172 F.3d 238, 252 (3d Cir. 1999). After
the moving party has filed a properly supported motion, the
burden shifts to the non-moving party to set forth specific facts
showing that there is a genuine issue for trial. Fed.R.Civ.P.
56(e). The non-moving party must make a showing sufficient to
establish the existence of each element essential to his case on
which she will bear the burden of proof at trial. Celotex,
477 U.S. at 322-23. The facts derived from the evidence of record
must be taken in the light most favorable to the nonmovant.
Schnall v. Amboy Nat'l Bank, 279 F.3d 205, 209 (3d Cir. 2002).
Plaintiff Shigle is a lifelong resident of Mount Pleasant
Borough. She has an avid interest in the activities of the
Borough and has attended many Council meetings to listen and
comment on the affairs of the Borough, sometimes critically. The
Council meetings are held on the first Monday of every month and
are open to the public.
Although she previously attended Council meetings regularly,
Shigle admits that she did not attend any Council meetings in
either 2003 or 2004. She also admits that the only meetings that she attended in the two years prior to filing her complaint
were held on October 1, 2001 and March 4, 2002. In her
deposition, Shigle was agnostic regarding what occurred at the
October 1, 2001 meeting, nor has she since proferred any evidence
regarding what transpired there. For their part, Defendants
provided the minutes of the October 1 meeting, which indicate
merely that Shigle made a statement about a local matter. The
minutes do not evidence that Defendants precluded Shigle from
speaking or otherwise vexed her in any way. Accordingly, there is
no record evidence to suggest that Shigle was deprived of any
rights at the October 1, 2001 meeting.
The second meeting Shigle attended was held on March 4, 2002.
At that meeting, Shigle spoke during the public comment section
at the beginning of the meeting and Tabita interrupted her
because he believed that her comment related to old business.
Tabita allowed Shigle to finish her statement, however, in spite
of the interruption, as indicated in the transcript:
Tabita: So, please, if you have any comments, please
rise and state your name.
Shigle: My name is Johanna Shigle, 341 Washington
Street, and I am back. I have two questions and one
remark. My questions are in regard to a motion made
by Mr. Tabita some months ago concerning the hiring
of Mr. Miele as a consultant landscaper for the
borough. Why was this job created? What does he do?
What are his qualifications as a landscaper? Why was
this employment not advertised? Did you make this job
available to Mr. Miele so that he could receive the
borough medical hospitalization plan for him and his
Tabita: Mrs. Shigle, I'll stop you right there.
Comments are to current comments, topical issues,
subjects to be brought before this council for
motions at council meetings and not past history.
Shigle: Well, you can
Tabita: And that's old business.
Shigle: rescind the motion. My second question is,
in an anonymous donation to the borough for $2,000,
is it legal that an anonymous donation be paid back by definition of free money? Is
a donation and by the definition of free money is
that a donation, is the borough paying this back to
annual payments of a thousand dollars to Mr. Miele?
Now, my remark is to this council body, is, it is a
travesty of justice and an abuse of power when a
council person makes false innuendos and accusations
to try and deny citizens of their civil and
constitutional rights and their freedom of speech.
With these goings on, the people of Mt. Pleasant are
in trouble. Thank you.
Tabita: Thank you for your comments. Would anyone
else like to speak?
Near the end of the March 4, 2002 meeting, Shigle rose to speak
again, and the following exchange occurred:
Shigle: I have a question with our consultant
Tabita: Please be seated. We're not going to
entertain that question again tonight.
Shigle: Has he come
Tabita: Please be seated.
Shigle: Before this borough with regard to trimming
(inaudible) before the spring?
Tabita: Be seated.
Shigle: That's the question I have.
First Unidentified Male Speaker: Motion to adjourn.
Second Unidentified Male Speaker: Second the Motion.
Tabita: Moved and seconded. Ready for the question.
Other than the two exchanges discussed above, there is no
evidence of any interaction between Shigle and the Council or
Tabita. During the March 4, 2002 meeting, Council passed a rule limiting public comments to three minutes. Shigle
acknowledged in her deposition that the rule was not in place
prior to March 4, 2002 and admitted that she has never been
subject to that three minute limitation.
Shigle gave deposition testimony twice during discovery, and
there were several assertions made in her initial deposition that
conflict with her later testimony. In her first deposition,
Shigle stated that she was prohibited from speaking at several
meetings, but could not remember the dates of the meetings in
question. In her subsequent deposition, however, Shigle testified
that she could not remember a meeting where she was refused the
opportunity to speak and, in fact, spoke at every meeting she
attended. During her fist deposition, Shigle stated several times
that she was harassed at almost every meeting, and referenced
interactions that she alleged happened at several different
meetings. Nevertheless, in response to the Defendant's Statement
of Undisputed Material Facts, Plaintiff admitted that she had
attended only two meetings in the two years prior to this action,
the October 1, 2001 and March 4, 2002 meetings referenced above.
Contrary to the transcript of the March 4, 2002 meeting, Shigle
claimed in her second deposition that she was never asked to
curtail old business. Shigle also insisted that she never
attempted to speak at any time other than the public comment
section at the beginning of meetings, and denied that she was
ever asked by Defendant Tabita to "please be seated."
Shigle claims Defendants violated 42 U.S.C. § 1983 by depriving
her of her First Amendment right to free speech, her Fifth and
Fourteenth Amendment rights to substantive and procedural due process, and her Fourteenth Amendment right to
equal protection. Defendants respond that no evidence has been
produced to support any of Plaintiff's claims. In addition,
Defendant Tabita raises a qualified immunity defense. Shigle's
claims are addressed seriatim.
A. Freedom of Speech
In support of her First Amendment claim, Shigle alleges that
the Borough and Council engaged in a pattern of behavior,
tantamount to an implicit policy, designed to silence and
intimidate her. She later admitted, however, that she has
attended only two meetings in the last two years and has evidence
of what transpired only at the March 4, 2002 meeting.
Furthermore, it is clear from the factual record that Shigle was
not silenced at the beginning of the March 4, 2002 meeting, but
rather was allowed to finish her comment after a brief
interruption. Thus, any First Amendment claim must rest on the
dialogue that occurred at the close of that meeting. During this
exchange, Shigle attempted to speak about the matter that she had
previously raised, and was repeatedly asked by Defendant Tabita
to be seated.
In Eichenlaub v. Township of Indiana 385 F.3d 274 (3d Cir.
2004), the Court of Appeals explained the factors to determine
what level of government control amounts to a First Amendment
violation in a public forum. The Court of Appeals recognized
that, whether a meeting is classified as a general public forum
or limited public forum, it is "reviewed under a sliding standard
that allows for content-related regulation so long as the content
is tied to the limitations that frame the scope of the
designation, and so long as the regulation is neutral as to the
viewpoint within the subject matter of that content." Id. at
281. In Eichenlaub, much like the instant case, a citizen at a
public meeting was speaking out of turn regarding non-germane
issues. There the Court of Appeals noted that "plainly, public
bodies may confine their meetings to specified subject matter. . . .
Thus, matters presented at a citizen's forum may be limited
to issues germane to the town government." Id. (internal
citations omitted). Accordingly, "restricting such behavior is
the sort of time, place, and manner regulation that passes muster
under the most stringent scrutiny for a public forum." Id. The
Court of Appeals emphasized further: "for the presiding officer
of a public meeting to allow a speaker to try and hijack the
proceedings, or to filibuster them, would impinge on the First
Amendment rights of other would-be participants." Id.
Although Shigle neither hijacked nor filibustered the
proceedings on March 4, 2002, it is clear that she was speaking
out of turn. Moreover, she was not subjected to nearly as severe
an intervention as the plaintiff in Eichenlaub, whose forcible
removal was upheld by the Third Circuit under the circumstances.
In response to Defendants' reliance on Eichenlaub, Shigle
advances two principal arguments. First, she claims Defendants
generally mistreated her at many different council meetings,
which chilled her First Amendment rights. Significantly, she has
cited no record evidence to support her claim. Second, Shigle
argues that she had a right to speak at the beginning of the
March 4, 2002 meeting because the topic she raised was germane.
The transcript of that meeting reveals, however, that after the
Council President attempted to prevent her from speaking about
what he deemed to be old business, Shigle was allowed to finish
her comment and was not prevented from speaking during the public
comment portion of the meeting. In sum, Plaintiff Shigle has proferred no record evidence to
suggest that she was subjected to anything more than a typical
time, place, and manner restriction which the Court of Appeals
specifically endorsed in Eichenlaub.
B. Procedural Due Process
In Carter v. City of Philadelphia, 989 F.2d 117 (3d Cir.
1993), the Court of Appeals stated that "one alleging a property
interest in a benefit protected by due process must go beyond
showing an unsubstantiated expectation of the benefit. The
plaintiff must demonstrate entitlement to a property interest
created expressly by state statute or regulation or arising from
government policy or a mutually explicit understanding between a
government employer and an employee." 989 F.2d. 117, 120 (3d Cir.
1993) (internal citations omitted). Shigle argues that her right
to speak at the public meeting is a right expressly conferred by
65 Pa. C.S.A. § 710.1, which states: "the board or council of a
political subdivision . . . shall provide a reasonable
opportunity at each advertised regular meeting . . . for
residents of the political subdivision . . . to comment on
matters of concern, official action or deliberation which are or
may be before the board or council prior to taking action." Id.
The statute upon which Shigle relies is unavailing. First, it
suggests that the Borough may limit discussion to germane
business. Moreover, the statute specifically states that "the
board or council has the option to accept all public comment at
the beginning of the meeting." Id. Viewing the facts in the
light most favorable to Shigle, the Borough complied with the
mandates of state law, and thus she was not deprived of any state
created right. C. Substantive Due Process
Shigle also claims that her right to substantive due process
was violated by the Borough, Council, and Tabita. The Supreme
Court held in County of Sacramento v. Lewis, 523 U.S. 823
(1998), that substantive due process rights are violated only
when "the behavior of the governmental officer is so egregious,
so outrageous, that it may fairly be said to shock the
contemporary conscience." Lewis at 847, n. 8. In United
Artists Theatre Circuit, Inc. v. Township of Warrington,
316 F.3d 392 (3d Cir. 2003), the Court of Appeals applied the Lewis
test in a municipal land use case, stating: "since Lewis, our
cases have repeatedly acknowledged that executive action violates
substantive due process only when it shocks the conscience but
that the meaning of this standard varies depending on the factual
context." Id. at 399-400.
However one might fairly describe the interaction between
Shigle, Council, and Tabita at the March 4, 2002 meeting, it
plainly falls well short of the `shocks the conscience' standard
necessary to result in a deprivation of substantive due process.
D. Equal Protection
Shigle next claims that she was denied equal protection of the
laws in violation of the Fourteenth Amendment. In direct
contravention to her claim, however, Shigle has not offered any
evidence that others were allowed to speak outside the public
comment section while she was silenced, and the transcript of the
March 4, 2002 meeting does not indicate any such disparate
treatment. The Third Circuit has adopted various levels of scrutiny for
disparate treatment of individuals, based on their membership in
a suspect class. Shigle has not cited any evidence that she is a
racial or ethnic minority nor has she presented any evidence that
she was treated differently because she is woman. Therefore, her
claim of differential treatment is examined with the most
permissive level of scrutiny, which provides that "the state
action here is presumed to be valid and will be upheld if it is
rationally related to a legitimate state interest." Tillman v.
Lebanon County Correctional Facility 221 F.3d 410, 423 (3d Cir.
In this case, Shigle was told to be seated because she was out
of order, both at the beginning of the meeting and at its
conclusion. Such treatment is rationally related to the
legitimate interest of the Borough in efficient and effective
management of its Council meetings. Thus, Plaintiff has failed to
present any facts with which a reasonable jury could conclude
that she suffered a violation of her equal protection rights.
E. Qualified Immunity
In addition to the foregoing arguments, Defendant Tabita
contends that he is entitled to qualified immunity because he was
acting within the scope of his official duties as Council
President during the March 4, 2002 meeting. "In evaluating a
claim of qualified immunity, we must first determine whether the
plaintiff has properly asserted a deprivation of a constitutional
right; then we can consider whether the right was clearly
established at the time of the alleged violation." Schieber v.
City of Philadelphia, 320 F.3d 409, 416 (3d Cir. 2003). Because
there has been no constitutional deprivation in this case as
noted herein, it is not necessary to engage in this inquiry. Even assuming, arguendo, that there were violations of
Shigle's constitutional rights, Tabita would be entitled to
qualified immunity. The second step in the inquiry is "whether a
reasonable officer would have believed that his or her conduct
deprived the plaintiff of his or her constitutional rights."
Harvey v. Plains Tp. Police Dept., 2005 WL 2077254 (3d Cir.
2005). Nothing in the record suggests that Tabita knew, or should
have known, that following the Borough procedures by directing a
speaker to address current business during the comments section
and directing the same citizen to "please be seated" when she
spoke out of order violated Shigle's constitutional rights.
Accordingly, Tabita's qualified immunity argument is persuasive.
An appropriate order follows.
AND NOW, this 15th day of November, 2005, for the reasons
set forth in the foregoing Memorandum Opinion, it is hereby
Defendants' Motion for Summary Judgment (Doc. No. 50) is
GRANTED. It is further ORDERED that the Court in the exercise of
its discretion will not maintain supplemental jurisdiction over
Plaintiff's state law claim against Defendant Milton Munk, Jr.
Accordingly, the Clerk is directed to mark this case CLOSED.
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