The opinion of the court was delivered by: Terrence F. McVerry United States District Court Judge
MEMORANDUM OPINION AND ORDER OF COURT
Presently pending before the Court for disposition are the MOTION TO DISMISS AMENDED COMPLAINT filed by defendant Port Authority of Allegheny County, with brief in support (Document Nos. 30 and 31) and the MOTION TO DISMISS AMENDED COMPLAINT filed by defendant Anthony J. Hickton, with brief in support (Document Nos. 32 and 33), the BRIEF IN OPPOSITION filed by plaintiffs, Pittsburgh League of Young Voters Education Fund and American Civil Liberties Foundation of Pennsylvania, (Document No. 34), the REPLY BRIEF filed by defendant Port Authority of Allegheny County (Document No. 35), and the REPLY BRIEF filed by defendant Anthony J. Hickton (Document No. 36).
After careful consideration of the filings in support and opposition thereto and the relevant case law, the Court will deny both motions.
As the law requires, all disputed facts and inferences are resolved in favor of the Plaintiffs. The following background is drawn from the Amended Complaint, unless otherwise noted, and the factual allegations therein are accepted as true for the purpose of this opinion. On December 8, 2006, plaintiffs Pittsburgh League of Young Voters Education Fund ("Fund") and American Civil Liberties Foundation of Pennsylvania ("ACLU") filed an Amended Complaint with this Court pursuant to 42 U.S. C. § 1983 in which they allege that Defendants have violated their rights under the First and Fourteenth Amendments to the United States Constitution.
The named plaintiffs in the Amended Complaint are the Fund and the ACLU. The Fund is 501(c)(3) non-profit organization registered with the Internal Revenue Service under the United States Tax Code. Am. Compl. ¶ 4. The Fund "works to educate traditionally disenfranchised or ignored communities to use the democratic process to improve their lives." Id. The Fund works closely with the Pittsburgh League of Young Voters, a 501(c)(4) organization that shares office space with the Fund and has the same mission, but is a separate entity. Id. The ACLU is a non-profit, public-interest organization "dedicated to defending and protecting civil rights and civil liberties" through the mechanisms of litigation, lobbying, and public-education efforts. Id. ¶ 5. Among other things, the ACLU focuses on voting-rights work and recently received restricted ear-marked donations primarily for public-relations efforts related to that work, which included the efforts involved in this case. Id.
Defendant Port Authority of Allegheny County ("PAT") is a state-government agency established by, and operating under, the laws of Pennsylvania. PAT owns and operates the public-mass-transit system in Allegheny County. Id. ¶ 6. Defendant Anthony J. Hickton is PAT's Director of Sales and is responsible for deciding which advertisements will run on PAT buses. Id. ¶ 7.
Plaintiffs allege that in October 2005 they joined with a broad group of community organizations to create an "ex-offender-voting-rights project" "designed to educate ex-offenders about their voting rights, register ex-offenders to vote and increase ex-offenders' involvement in the political systems that change their lives." Id. ¶ 8. This group decided to use bus advertisements as a means of providing accurate information to ex-offenders in Allegheny County about their voting rights. Id. ¶ 10. The ACLU, therefore, applied for, and received, grants from several Pittsburgh area foundations to print placards and purchase advertising space on buses and the Fund obtained grants to promote voter registration. Id. ¶ 11.
Because they had seen many non-commercial advertisements on PAT buses and at PAT bus stops in late 2005, Plaintiffs believed that they would be able to purchase space to run voter-education messages on PAT buses. Id. ¶ 12. In late November of 2005, however, they were surprised when Defendant Hickton told a representative of the Fund that PAT would not run the Plaintiffs' voter-education advertisements because PAT only ran "commercial ads." Id.
¶ 13. At that time, the only information that Plaintiffs had provided to PAT was that the sponsoring groups of the advertisements were the ACLU and the Fund and that the information contained in the advertisements would provide accurate information regarding ex-offenders' voting rights. Id.
Plaintiffs and their attorneys then attempted to convince PAT to accept advertisements that "educate citizens with regard to their right to vote in Allegheny County" in a series of three letters dated January 25, February 24, and June 27 of 2006. Id. ¶ 14. PAT, however, continued to refuse the Plaintiffs' requests and in a March 24, 2006 response letter referred to its advertising policy and reiterated that it accepted only "commercial advertising." Id. ¶ 15. That policy, which Plaintiffs attached to their initial Complaint, includes a provision stating that "Port Authority will not accept advertisements that are non-commercial." Compl., Ex. 1 (PAT Advertising Policy).
Plaintiffs allege that the "incongruity between the policy . . . and the non-commercial advertisements routinely observed on PAT buses" led their counsel to review PAT's advertising contracts for the previous three years. Am. Compl. ¶ 17. They allege that their review showed that PAT's actual practice "has been to accept and run numerous non-commercial, public-service and issue advertisements." Id. ¶ 18. Plaintiffs specifically note that PAT has recently run an advertisement by a local non-profit organization, the "Just Harvest Education Fund," informing low-income citizens of their rights to certain tax credits, an advertisement by another 501(c)(3) organization, the Women's Law Project, inviting people to call for free legal advice if they believe their rights have been violated, and an advertisement co-sponsored by the Pittsburgh Human Relations Commission and the Fair Housing Partnership, a local non-profit organization that fights discrimination and promotes fair-housing practices, stating that "Housing discrimination is illegal. We can help." Id. ¶ 19. Plaintiffs also allege that PAT has accepted advertisements sponsored by a number of other non-profit organizations and asserts that "some" of these ads were non-commercial. Id. ¶ 20. Finally, Plaintiffs allege that PAT also appears to run "public-service-type advertisements that it sponsors," such as advertisements which note the accomplishments of Rosa Parks, feature the text from Title VI of the Civil Rights Act, promote an anti-littering campaign, provide information sessions about the MAGLEV project, and other "public education campaigns." Id. ¶ 21.
Plaintiffs allege that PAT's widespread practice of accepting and running non-commercial advertisements, as evidenced by the advertisements noted above, indicates that by history and practice PAT has created a designated public forum for advertisements on its buses. They claim that the refusal of PAT and Defendant Hickton to run the ex-offender-voter-education advertisements in that public forum amounts to impermissible content-based discrimination and contend that Defendants have not shown that their decision to do so was narrowly tailored to promote a compelling government interest. In the alternative, Plaintiffs assert that, even if PAT did not create a public forum, the refusal of the Defendants to run the ex-offender-voter-education advertisements despite having run similar non-commercial advertisements by other organizations amounts to viewpoint discrimination. Plaintiffs, therefore, seek declaratory and injunctive relief and damages for the violation of their rights under the First and Fourteenth Amendments to the U.S. Constitution.
Defendants have filed the instant motions to dismiss. They both contend that the Amended Complaint should be dismissed in its entirety because Plaintiffs lack standing to challenge the constitutionality of Defendants' refusal to run the Plaintiffs' advertisements and that the Plaintiffs' request for injunctive relief should be dismissed because the requested injunction is not a permissible remedy. In addition, Defendant Hickton argues that he is entitled to qualified immunity as a matter of law.
In deciding a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6), the court accepts the well-pleaded factual allegations of the complaint as true, and draws all reasonable inferences therefrom in favor of the plaintiff. Armstrong Surgical Center, Inc. v. Armstrong County Memorial Hosp., 185 F. 3d 154, 155 (3d Cir. 1999), cert. denied, 530 U.S. 1261 (2000). A claim should not be dismissed for failure to state a claim unless it appears beyond a doubt that the non-moving party can prove no set of facts in supports of its allegations which would entitle it to relief. Conley v. Gibson, 355 U.S. 41, 45-46 (1957). All allegations in the complaint and all reasonable inferences that can be drawn therefrom must be accepted as true and viewed in the light most favorable to plaintiffs. Pennsylvania Nurses Ass'n v. Pennsylvania State Educ. Ass'n, 90 F.3d 797, 799-800 (3d Cir. 1996), cert. denied, 519 U.S. 1110 (1997).
Generally, "to the extent that [a] court considers evidence beyond the complaint in deciding a 12(b)(6) motion, it is converted to a motion for summary judgment." Anjelino v. New York Times Co., 200 F.3d 73, 88 (3d Cir. 1999). However, in resolving a 12(b)(6) motion to dismiss, a court may look beyond the complaint to documents referenced in the complaint or which are essential to a plaintiff's claim and are attached to either the complaint ...