The opinion of the court was delivered by: Stengel, J.
Joseph Yamrus flies an American flag upside-down flag in his front yard. On June 11, 2007, Washington Township police officer Scott Miller told Yamrus to remove the flag or fly it right-side-up. When Yamrus refused to remove the flag (because it was an expression of his political opinions), Miller cited him for violating a Pennsylvania statute that prohibits insulting the flag ("flag statute").*fn1 Later, the criminal charges were dismissed, but Yamrus filed this lawsuit requesting declaratory relief and damages. He alleges that defendants Township of Washington, Police Chief Daniel C. Cotturo and Officer Miller (collectively "defendants") violated his constitutional rights.*fn2
Defendants filed a motion to dismiss arguing that (1) no case or controversy exists, (2) official immunity protects defendants Cotturo and Miller, and (3) that the complaint lacks (a) allegations of Cotturo's supervisory authority over Miller, (b) allegations of Township's policy or practice, (c) allegations of an injury under § 1983, and (d) allegations of constitutional deprivation.
Based on the following discussion, I will grant defendants' motion, in part, and deny it, in part.
Yamrus filed this case on June 18, 2008, alleging that defendants violated his federal and state constitutional rights. The complaint states that Yamrus flies an upside-down flag at his Washington Township home as "a political statement. . . specifically directed at conduct by certain members of Congress." Compl. ¶ 11 (Document #1). In response to a civilian complaint about Yamrus's flag display, defendant Miller took photographs of the flag at Yamrus' home, left a phone message demanding Yamrus remove the flag or fly it upright, and charged him with violating the flag statute on June 21, 2007. Compl.¶ 11-24 (Document #1). On July 12, 2007, the charge was dropped. Compl. ¶ 27, (Document #1). Defendants filed the instant motion to dismiss on August 15, 2008. Yamrus filed his Memorandum of Law in Opposition to Defendants' Motion to Dismiss on September 15, 2008.
II. STANDARD FOR A MOTION TO DISMISS
The purpose of a motion to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure is to test the legal sufficiency of a complaint. Kost v. Kozakiewicz, 1 F.3d 176, 183 (3d Cir. 1993). When considering a motion to dismiss, courts must construe the complaint liberally, accept all factual allegations in the complaint as true, and draw all reasonable inferences in favor of the plaintiff. Phillips v. County of Allegheny, 515 F.3d 224, 231 (3d Cir. 2008); Nami v. Fauver, 82 F.3d 63, 65 (3d Cir. 1996). Courts look only to the facts alleged in the complaint and not to matters extraneous to the pleadings in deciding a motion to dismiss. Jordan v. Fox, Rothschild, O'Brien & Frankel, 20 F.3d 1250, 1261 (3d Cir. 1994); In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1426 (3d Cir. 1997). Under Fed. R. Civ. P. 8(a)(2), the complaint must contain "a short and plain statement of the claim showing that the pleader is entitled to relief." The statement must provide to defendant "fair notice of what the . . .claim is and the grounds upon which it rests."Bell Atlantic Corp. v. Twombly, --- U.S. ---, 127 S.Ct. 1955, 1964 (2007); see also D.P. Enters. v. Bucks County Cmty. Coll., 725 F.2d 943, 944 (3d Cir. 1984).
Establishing that no possible claim has been presented is the defendants' burden at this stage. Ransom v. Marrazzo, 848 F.2d 398, 401 (3d Cir. 1988). Courts, however, will not accept as true "bald assertions" or "vague and conclusory allegations." See Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 906 (3d Cir. 1997); Sterling v. Southeastern Pa. Transp. Auth., 897 F. Supp. 893 (E.D. Pa. 1995).
In determining whether a case or controversy exists in a declaratory judgment action, a three-step test is used. First, we must look to the adversity of interest between the parties. Second, we must ascertain the conclusiveness that a declaratory judgment would have on the legal relationship between the parties. Third, we must determine the "practical help, or utility" of a declaratory judgment. Step-Saver Data Systems, Inc. v. Wyse Technology, 912 F.2d 643, 647 (3d Cir. 1990).
Here, the parties have adverse legal interests. Yamrus has alleged that defendants have an apparent and ongoing interest in requiring him to cease his political expression and remove the flag from his yard or fly it right-side-up. Yamrus has flown and continues to fly an upside-down flag in his front yard. He has been threatened with prosecution for his display and he was actually charged. He has alleged that there exists a real and immediate threat of enforcement against him. It is sufficient for Article III purposes that Yamrus has alleged that he intends to engage in the prohibited conducted and that his fear is more than "imaginary or speculative." Spencer v. Honorable Justices of the Sup. Ct. of Penn., 579 F.Supp. 880, 883 (3d Cir. 1985). Yamrus was prosecuted for violating the flag statute, a criminal complaint was filed against him and he continues to display the flag in a manner defendants deem to be unlawful. Further, defendant Miller continues to defend his alleged constitutional deprivations, regardless of whether they constitute constitutional violations.
It is not necessary that Yamrus have suffered a completed harm such as criminal conviction or a cease-and-desist order in order to establish such adversity. Armstrong World Industries, Inc. v. Adams, 961 F.2d 405 (3d Cir. 1992) (citing Pacific Gas & Elec. Co. v. State Energy Resource Conservation & Dev. Comm'n, 461 U.S. 190, 201, 103 S.Ct. 1713, 1720, 75 L.Ed.2d 752 (1983)). In Presbytery of New Jersey of the Orthodox Presbyterian Church v. Florio, et al., 40 F.3d 1454, 1467 (3d Cir. 1994), defendants argued that "the case is not ripe absent an actual prosecution." The Third Circuit stated, however, "That is not the law." The U.S. Supreme Court has held that a controversy exists and is ripe for review when a plaintiff seeks to exercise his First Amendment right to freedom of expression. Steffel v. Thompson, 415 U.S. 452, 94 S.Ct. 1209, 39 L.Ed.2d 505 (1974). In fact, it is not necessary that Yamrus even have been arrested or cited for exercising his constitutional rights. Id. It is ...