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McTernan v. City of York

May 11, 2007


The opinion of the court was delivered by: Judge Jones



Pending before the Court is a Motion to Dismiss Plaintiff's Complaint pursuant to Fed. R. Civ. P. 12(b)(6) ("the Motion")(doc. 9) filed by Defendants City of York, York Mayor John S. Brenner, York Police Commissioner Mark L. Whitman, and York Sergeant Richard Barth on January 8, 2007.

For the reason that follow, the Motion shall be granted in part and denied in part.


Plaintiff John McTernan ("Plaintiff" or "McTernan") is a Christian, pro-life advocate who periodically appears at the Planned Parenthood of Central Pennsylvania facility in the City of York to demonstrate his anti-abortion views. (Complaint, ¶¶8-14). Plaintiff avers that there have been no physical confrontations or altercations between the anti-abortion activists and Planned Parenthood personnel at the facility in recent years. (Complaint, ¶15). The complaint asserts that despite the lack of violence, the City of York, its mayor and Police Chief have routinely dispatched police officers to Planned Parenthood at the request of the facility to serve as private security guards for Planned Parenthood. Plaintiff believes and therefore avers that Planned Parenthood pays for the police officers and directs their actions. (Complaint, ¶16).

On June 19, 2005, Plaintiff was present at Planned Parenthood with information to give to pregnant women attending the facility. (Complaint, ¶¶17-18). On that date, Plaintiff alleges that a motor vehicle turned onto Rose Alley at a high rate of speed and then accelerated as it traveled down the alley. Plaintiff alleges that as the vehicle approached him and his fellow advocates, the vehicle intentionally swerved toward McTernan, passing him at a close distance. (Complaint, ¶19). McTernan alleges that this occurred while Sergeant Barth was watching.

Following the incident, Plaintiff alleges that he immediately ran to Sergeant Barth and informed him of the criminal conduct that had just occurred in front of him and had been directed toward Plaintiff. Plaintiff alleges that Sergeant Barth indicated that the incident was "so noted" but otherwise took no action as a law enforcement officer. Plaintiff then went to York Police Headquarters in an attempt to file charges, but was allegedly told by the desk sergeant that he was a "trouble maker" and that if the Plaintiff did not like his response, he should hire an attorney. Plaintiff avers that no action was ever taken against the driver by the York City Police Department. By letter dated July 15, 2005, Plaintiff notified Defendant Mayor Brenner of the incident and the police response to it. (Complaint, ¶¶21-25).

On September 28, 2005, Plaintiff and others were assembled at the Planned Parenthood facility in York and Sergeant Barth was on duty at that location. (Complaint, ¶¶26-27). Plaintiff alleges that Sergeant Barth told him that he and others were not allowed to stand in Rose Alley, but that Planned Parenthood staff were allowed to stand in Rose Alley. (Complaint, ¶28). Sergeant Barth also told Plaintiff that he could walk in the alley but that he had to do so in the "right way." Plaintiff alleges that when he inquired what the "right way" was, Sergeant Barth refused to tell him, although he did say that "English walking" was not permitted. When asked, Sergeant Barth allegedly refused to define what "English walking" was. (Complaint, ¶29). Thereafter, Plaintiff walked down the alley and back to Sergeant Barth. When Plaintiff walked back down the alley, Sergeant Barth told him that if he walked in the alley again, he would be arrested. (Complaint, ¶¶30- 31). Plaintiff alleges that he did not interfere with any vehicular traffic, however, because of Sergeant Barth's threats, he did not enter the alley again on that day. (Complaint, ¶32).

Plaintiff initiated this civil action by filing a complaint (doc. 1) on October 31, 2006 seeking nominal, compensatory and punitive damages; a declaratory judgment; and temporary and permanent injunctive relief. The complaint attempts to assert civil rights claims pursuant to 42 U.S.C. § 1983 for violation of Plaintiff's First Amendment rights to free exercise of religion (Count I); peaceful assembly (Count II); and free speech (Count III). The complaint names the City of York, Brenner, Whitman and Barth as Defendants. Defendants Brenner and Whitman are named in their official capacities only, and Defendant Barth is being sued in his official and individual capacities.

On January 8, 2007, the Defendants filed the instant Motion. The Motion has been fully briefed by the parties and is therefore ripe for our review.


In considering a motion to dismiss pursuant to Fed. R. Civ. Pro. 12(b)(6), a court must accept the veracity of a plaintiff's allegations. See Scheuer v. Rhodes, 416 U.S. 232, 236 (1974); see also White v. Napoleon, 897 F.2d 103, 106 (3d Cir. 1990). In Nami v. Fauver, 82 F.3d 63, 65 (3d Cir. 1996), our Court of Appeals for the Third Circuit added that in considering a motion to dismiss based on a failure to state a claim argument, a court should "not inquire whether the plaintiffs will ultimately prevail, only whether they are entitled to offer evidence to support their claims." Furthermore, "a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set ...

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