The opinion of the court was delivered by: James Knoll Gardner, United States District Judge
This matter is before the court on the Motion to Dismiss of Defendants Allentown Women's Center and Jennifer Boulanger filed July 24, 2008.*fn1 Upon consideration of the briefs of the parties and for the reasons articulated in this Opinion, I grant in part and deny in part the motion to dismiss.
Specifically, I grant defendants' motion to dismiss Count II of plaintiffs' complaint for failure to state a claim upon which relief can be granted. I dismiss Count II, a claim pursuant to 42 U.S.C. § 1983 for deprivation of plaintiffs' rights to religious freedom and freedom of expression under the Pennsylvania Constitution because § 1983 provides a remedy for the violation of federal, not state, constitutional rights.
I also grant defendants' motion to dismiss Count III of plaintiffs' complaint, a claim pursuant to 42 U.S.C. § 1983 alleging violation of plaintiffs' federal right to equal protection of the law for violation of their freedom of speech under the First Amendment to the United States Constitution, and alleging violation of plaintiffs' state right to equal protection of the law for violating their freedom of expression under Article I, § 7 of the Pennsylvania Constitution. I dismiss the claims under the state Constitution for the same reasons I dismiss Count II. I dismiss the equal protection of the law claims under the federal Constitution as duplicative of plaintiffs' First Amendment claim in Count I.
I deny defendants' motion to dismiss Count I of the complaint because I find that plaintiffs have sufficiently pled claims under § 1983 that defendants deprived plaintiffs of their federal rights under the First Amendment to freedom of speech and religion. I conclude that the right of free speech guarantees every citizen that he may reach the minds of willing listeners and to do so there must be opportunity to win their attention. In this case, plaintiffs have sufficiently alleged that defendants' efforts to drown out plaintiffs' religious anti-abortion message infringe upon plaintiffs' First Amendment rights.
Finally, I deny defendants' motion to dismiss Count IV of the complaint because I find that plaintiffs have sufficiently pled a pendent state law claim for public nuisance under Pennsylvania law. I conclude that Pennsylvania recognizes a private cause of action for public nuisance. I find plaintiffs' allegation that defendants have blocked pedestrian and motor vehicle traffic on a public street in Allentown, Pennsylvania, to be sufficient because obstruction of a public highway is a public nuisance. I also conclude that under Pennsylvania law, civil rights violations can be specific injuries sufficient to state claims for public nuisance.
Jurisdiction in this case is based upon federal question jurisdiction pursuant to 28 U.S.C. § 1331. The court has supplemental jurisdiction over plaintiffs' pendent state law claims. See 28 U.S.C. § 1367.
Venue is proper pursuant to 28 U.S.C. § 1391(b) because the events giving rise to plaintiffs' claims allegedly occurred in Allentown, Lehigh County, Pennsylvania, which is located within this judicial district.
On June 4, 2008 plaintiffs Kathleen Kuhns, Joyce Mazalewski and Kathleen Teay filed a four-count Complaint for Injunctive Relief and Damages against the City of Allentown; Chief of Police Roger MacLean (both individually and in his official capacity); Allentown Women's Center, Inc.; and Jennifer Boulanger, the Center Executive Director.
In this federal civil rights action, three anti-abortion protesters claim that a private reproductive health care provider and its Executive Director violated the protesters' federal First Amendment and Equal Protection rights, as well as rights secured by the Pennsylvania Constitution and state law.
The complaint also names as defendants the City of Allentown and its Chief of Police. Plaintiffs allege that these municipal defendants acted jointly with the Women's Center and its Director to deprive plaintiffs of their rights, including their constitutional free speech, religious freedom and equal protection rights, and to create a public nuisance.
The complaint alleges that the defendants are permitting clinic escorts to accompany Women's Center patients through the crosswalk on Keats Street adjoining the Center, using three strategies to shield them from direct contact with the protesters.
Specifically the complaint alleges that the Women's Center (presumably through its employees, agents or volunteers), including Director Boulanger: (1) hold two six-foot by fifteen-foot opaque plastic tarps seven feet apart within the crosswalk, which separates patients from protesters and blocks Keats Street from the exit of the parking lot used by the Center to the entrance of the Center; (2) form a "human shield" around patients to prevent protesters from having access to them in a public place; and (3) shout to create "vocal noise" for the purpose of drowning out the protesters' message.*fn2
Count I of the complaint is brought under 42 U.S.C. § 1983 and alleges violation of plaintiffs' rights under the First and Fourteenth Amendments to the United States Constitution. More specifically, Count I alleges that defendants City and Police Chief have acted jointly with defendants Center and its Director under color of state law to deprive plaintiffs of their rights under the First Amendment to freedom of speech and religion.
Count II is also brought under § 1983 and alleges violations under Article I, §§ 3 and 7 of the Pennsylvania Constitution. More specifically, Count II alleges that defendants City and Police Chief have acted jointly with defendants Center and its Director under color of state law to deprive plaintiffs of their rights to religious freedom under § 3 and to freedom of expression under § 7.
Count III is brought under § 1983 and alleges that defendants' conduct violates plaintiffs' rights to equal protection of the law under the Fourteenth Amendment to the United States Constitution and under the Pennsylvania Constitution and the state statutes prohibiting obstruction of roadways.
Finally, in Count IV plaintiffs allege a private action for public nuisance under Pennsylvania state law. More specifically, Count IV alleges that the defendants acting jointly under color of state law have engaged in conduct that unreasonably interferes with Constitutional and civil rights of plaintiffs which are common to the general public.
Plaintiffs allege that these deprivations of their rights have caused them mental suffering, emotional distress and other harm warranting compensatory damages. In their Prayer for Relief plaintiffs seek compensatory damages; injunctive relief against Director Boulanger and the Allentown Women's Center, and its agents, servants and employees under Counts I-III, enjoining and restraining them from further interference with plaintiffs' rights, and under Count IV, enjoining and restraining them from continuing the conduct constituting a public nuisance; reasonable fees and costs pursuant to 42 U.S.C. § 1988 as to Counts I-III; and such other relief as the court deems just and proper.
In ruling upon a motion to dismiss, the court may consider "any matters incorporated by reference or integral to the claim, items subject to judicial notice, matters of public record, orders, [and] items appearing in the record of the case." Buck v. Hampton Township School District, 452 F.3d 256, 260 (3d Cir. 2006).
This litigation follows two previous federal civil rights lawsuits by anti-abortion protesters against the City of Allentown and Allentown Police Department stemming from confrontational protests at and around the entrance to the Women's Center. See Arietta v. City of Allentown, civil action number 04-cv-00226 (E.D.Pa.) ("Arietta I"); Arietta v. City of Allentown, civil action number 04-cv-05306 (E.D.Pa.) ("Arietta II").
Two of the plaintiffs in the within case, Kathleen R. Kuhns and Kathleen Teay, were also plaintiffs in the previous litigation. Ms. Kuhns was a plaintiff in both Arietta I and Arietta II, and Ms. Teay was a plaintiff in Arietta II. The City of Allentown and officials of the Allentown Police Department were named as defendants in both previous cases.
Both plaintiffs Kuhns and Teay signed a comprehensive settlement agreement, entitled "Consent Judgment", which this court entered as a final judgment in Arietta II.*fn3 This Consent Judgment created detailed rules governing the conduct of police and protesters at protests held at and around the entrance to the Women's Center.
Specifically, the Consent Judgment created a seven-foot-wide crosswalk spanning Keats Street. The crosswalk connects the Women's Center's parking lot and the entrance to the Center. In addition, the Consent Judgment created a painted walkway on Keats Street adjacent to the parking lot - a four-foot wide strip running the length of Keats Street across the street from the Women's Center, perpendicular to the seven-foot-wide crosswalk.
The Consent Judgment further provided:
2. The Plaintiffs' claims for injunctive relief are settled on the following terms:
h. Plaintiffs may stand or walk along the walkway within the crosswalk past the parking lot gate in either direction during their pro-life advocacy. However, if a patient, staffer, volunteer, or other person affiliated with Allentown Women's Center elects to enter and use the crosswalk and is in the process of going to or from AWC, any Plaintiff present shall withdraw from the crosswalk until said person(s) have entered AWC or the parking lot, as the case may be.
i. When AWC-related persons are using the crosswalk, Plaintiffs may walk back and forth across Keats Street on either or both sides of the crosswalk, to engage in pro-life advocacy, until the AWC-related persons have entered AWC or the parking lot, as the case may be. Non-consensual physical contact is prohibited between Plaintiffs and clinic employees, patients or visitors.*fn4 In brief, under the terms of the Consent Judgment, protesters may not be in the crosswalk when Women's Center patients, staff or volunteers are in it.*fn5
Neither the Women's Center nor Jennifer Boulanger was a party to Arietta I or Arietta II. In fact, the Women's Center attempted, unsuccessfully, to intervene in Arietta II upon learning the broad outlines of the Consent Judgment. The City of Allentown and the Allentown police opposed the Women's Center Motion to Intervene, as did the plaintiff-protesters. Following briefing and argument I denied the Women's Center's Motion to Intervene and dismissed the Allentown Women Center's Complaint in Intervention.*fn6
My Opinion denying the Motion to Intervene stated that "[t]he existing parties' settlement agreement does not bind the Women's Center in any way with respect to possible future FACE Act*fn7 or Fourteenth Amendment litigation. The Center is a non-party and will not be bound by res judicata principles."*fn8
In addition, my Opinion stated that the Arietta II settlement agreement "does not compel employees, patients or visitors of the Allentown Women's Center to utilize the designated crosswalk. Those affiliated with the Women's Center are free to seek passage across Keats Street in either direction in any manner they choose."*fn9
A claim may be dismissed under Federal Rule of Civil Procedure 12(b)(6) for "failure to state a claim upon which relief can be granted." A 12(b)(6) motion requires the court to examine the sufficiency of the complaint. Conley v. Gibson, 355 U.S. 41, 45, 78 S.Ct. 99, 102, 2 L.Ed.2d 80, 84 (1957) (abrogated in other respects by Bell Atlantic Corporation v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)).
Ordinarily, a court's review of a motion to dismiss is limited to the contents of the complaint, including any attached exhibits. See Kulwicki v. Dawson, 969 F.2d 1454, 1462 (3d Cir. 1992). However, evidence beyond a complaint which the court may consider in deciding a 12(b)(6) motion to dismiss includes public records (including court files, orders, records and letters of official actions or decisions of government agencies and administrative bodies), documents essential to plaintiff's claim which are attached to defendant's motion, and items appearing in the record of the case. Oshiver v. Levin, Fishbein, Sedran & Berman, 38 F.3d 1380, 1384 nn.1-2 (3d Cir. 1995).
Except as provided in Federal Rule of Civil Procedure 9, a complaint is sufficient if it complies with Rule 8(a)(2). That rule requires only "a short and plain statement of the claim showing that the pleader is entitled to relief" in order to give the defendant fair notice of what the claim is and the grounds upon which it rests. Twombly, 550 U.S. at 555, 127 S.Ct. at 1964, 167 L.Ed.2d at 940.
Additionally, in determining the sufficiency of a complaint, the court must accept as true all well-pled factual allegations and draw all reasonable inferences therefrom in the light most favorable to the non-moving party. Worldcom, Inc. v. Graphnet, Inc., 343 F.3d 651, 653 (3d Cir. 2003). Nevertheless, a court need not credit "bald assertions" or "legal conclusions" when deciding a motion to dismiss. In re Burlington Coat Factory Securities Litigation, 114 F.3d 1410, 1429-1430 (3d Cir. 1997).
In considering whether the complaint survives a motion to dismiss, both the District Court and the Court of Appeals review whether it "contain[s] either direct or inferential allegations respecting all the material elements necessary to sustain recovery under some viable legal theory." Twombly, 550 U.S. at 562, 127 S.Ct. at 1969, 167 L.Ed.2d at 945 (quoting Car Carriers, Inc. v. Ford Motor Company, 745 F.2d 1101, 1106 (7 th Cir. 1984)) (emphasis in original); Haspel v. State Farm Mutual Auto Insurance Company, 241 Fed.Appx. 837, 839 (3d Cir. 2007).
Plaintiffs specifically allege the following facts in their complaint, which under the foregoing standard of review, I must accept as true for the purposes of the motion to dismiss.
Plaintiffs are pro-life advocates who express their views outside the Allentown Women's Center, located on Keats Street in Allentown, Pennsylvania.*fn10 Through their actions, speech, and literature, plaintiffs' counsel and inform pregnant women and their companions in an attempt to persuade them not to abort their pregnancies, in keeping with plaintiffs' religious convictions that abortion is the taking of innocent life and contrary to God's law.*fn11
Defendants City of Allentown and Allentown Chief of Police Roger MacLean have authorized the Allentown Women's Center and its Executive Director, Jennifer Boulanger, to block Keats Street despite plaintiffs' complaints to the city.*fn12
To prevent plaintiffs from exercising their rights, persons acting on behalf of defendant Women's Center, including defendant Jennifer Boulanger, hold opaque tarps across Keats Street between the Women's Center entrance and an adjacent parking lot, employ people to form human shields around pregnant women as they cross Keats Street, and shout to drown out the protesters.*fn13
Agents of co-defendant City of Allentown, including co-defendant Chief of Police Roger MacLean, permit the Women's Center and Jennifer Boulanger to engage in this conduct. In addition, they issued numerous groundless criminal charges against plaintiffs, and allowed Allentown Women's Center patients to threaten and physically attack pro-life advocates.*fn14
Finally, agents of the Women's Center, including Jennifer Boulanger have conspired with agents of defendant City, including Chief MacLean, to deprive plaintiffs of their constitutional and civil rights.*fn15
CONTENTIONS OF THE PARTIES
Federal Constitutional ...