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Miller v. North Belle Vernon Borough


April 22, 2009


The opinion of the court was delivered by: Ambrose, Chief District Judge


Plaintiff Carl Miller ("Miller") contends that during a regularly scheduled meeting of North Belle Vernon Borough ("the Borough"), he was assaulted by the Defendants on account of and in retaliation for having engaged in protected First Amendment activity. His initial Complaint named the Borough; Edward J. Lyons (the Mayor); Dennis Simboli (President of the Borough Council) and Coleen Naylor (the Borough Police Officer who removed him from the meeting), as Defendants. I previously granted the Defendants' Partial Motion to Dismiss in part. See Docket No. [12]. Specifically, I dismissed the claims asserted under 42 U.S.C. § 1983 for retaliation based upon having exercised First Amendment rights (as applied to the State via the Fourth Amendm ent) because Miller had not sufficiently alleged that he had engaged in protected activity. I also dismissed the claims asserted under 42 U.S.C. § 1983 against the Borough for violations of the First Amendment for the additional reason that Miller failed to sufficiently plead that the deprivation of the constitutional right occurred because of a Borough custom, practice or policy. Finally, I dismissed any claims asserted against Defendant Simboli for the additional reason that Miller failed to plead Simboli had any personal involvement in the conduct at issue or was somehow otherwise responsible for the conduct of others.*fn1 The dismissal was without prejudice to file an Amended Complaint curing the deficiencies noted within the Opinion.

Miller has since filed an Amended Complaint. See Docket No. [16]. He explains that the "protected activity" he engaged in consisted of speaking (and / or attempting to speak) at the Borough meeting regarding comments Lyons and Simboli made in a newspaper article about a Borough Ordinance regarding the removal of "junk" vehicles and about the Ordinance in general. Miller also adds numerous allegations explaining in detail Simboli's role in the alleged retaliatory conduct. Finally, Miller explains that "[i]t is the custom or policy of Defendant Borough at its public meetings that nothing occur and that nothing be stated, commented upon or discussed without oral instruction, approval or permission of Defendant Simboli prior to the commencement of the said meeting." See Docket No. [16], ¶ 8. It also appears that Miller has added an additional claim - that the Defendants acted so as to suppress his exercise of First Amendment rights.

In response, the Defendants have filed a Partial Motion to Dismiss Plaintiff's Amended Complaint Pursuant to FRCP 12(b)(6). See Docket No. [19].*fn2 They urge that the facts as alleged in the Amended Complaint coupled with the Meeting Minutes appended thereto demonstrate that the time, place and manner restrictions placed upon Miller's speech at the Borough meeting were constitutionally sufficient and thus cannot give rise to a First Amendment claim. Absent a valid constitutional claim, the Defendants reason, there can be no municipal liability. Finally, the Defendants urge, the conduct of which Miller complains is not so "extreme" and "outrageous" as to be actionable under a claim for intentional infliction of emotional distress.

After careful consideration, and for the reasons set forth below, the Motion is denied.

Standard of Review

In ruling on a motion to dismiss brought pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, I must construe all allegations of the complaint in the light most favorable to the plaintiff. I must also accept as true all well- pleaded facts and allegations, and must draw all reasonable inferences therefrom in favor of the plaintiff. Worldcom, Inc. v. Graphnet, Inc., 343 F.3d 651, 653 (3d Cir. 2003). However, as the Supreme Court made clear in Bell Atlantic v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 1965 (2007), the "[f]actual allegations must be enough to raise a right to relief above the speculative level." Thus, "a plaintiff's obligation to provide the 'grounds' of his 'entitle[ment] to relief' requires more than labels and conclusions, and a form ulaic recitation of the elements of a cause of action will not do." Id. (citations omitted).


I. First Amendment Claims

I read the Amended Complaint to include two types of First Amendment claims - one based upon retaliation for having exercised First Amendment rights (see ¶1) and one based upon the suppression of the right to exercise First Amendment rights (see ¶ 9). The Defendants' Partial Motion to Dismiss does not challenge the retaliation claim.*fn3 Instead, the challenge focuses solely upon the suppression of the right to exercise First Amendment rights.


As Miller notes, "[t]he government's power to prevent or limit speech on public property is carefully circumscribed by the First Amendment." Eichenlaub v. Township of Indiana, 385 F.3d 274, 279 (3d Cir. 2004). Here Miller spoke at a Borough meeting and it is not entirely clear based upon the facts presented whether this venue constitutes a "general public forum" or a "limited public forum." Whether a meeting is classified as a general public forum or a limited public forum, however, it "is reviewed under a sliding standard that allows for content-related regulation so long as the content is tied to the limitations that fram e the scope of the designation, and so long as the regulation is neutral as to viewpoint within the subject matter of that content." Eichenlaub, 385 F.3d at 281. Thus, a public body may confine meetings to a specified subject matter and may restrict repetitive, disruptive and truculent behavior. Id. "Restricting such behavior is the sort of time, place, and manner regulation that passes muster under the most stringent scrutiny for a public forum. Indeed, for the presiding officer of a public meeting to allow a speaker to try to hijack the proceedings, or to filibuster them, would impinge on the First Amendment rights of other wouldbe participants." Id.

The Defendants contend that the restrictions placed on Miller's continued speech were appropriate with respect to time, place and manner. At the commencement of the Borough meeting, Defendant Simboli: welcomed the large crowd and said each would be permitted to speak on their subject for five minutes. Simboli noted there will be no interruptions or side conversations while a person is addressing council. If it happens a warning will be issued first. If the interruption continues, he will ask the mayor to have the police officer remove the person from the meeting.

See Meeting Minutes appended to the Amended Complaint, Docket No. [16]. In the abstract, I may agree with the Defendants that:

[i]n this case, the Council's rules prescribing a five (5) minute time limit for each speaker, limiting speakers such as Mr. Miller to only one opportunity to speak, and removing persons who, after a warning, continue to interrupt other speakers and speak out of turn are clearly constitutionally permissible restrictions on speech because the government has a significant interest in conducting orderly, efficient, effective and dignified meetings of its public bodies.

See Docket No. [20], p. 16. Simply stated, however, at this procedural juncture, I am not prepared to decide as a matter of law that Miller was acting disorderly or disruptively.*fn4 Indeed, in his Amended Complaint he states that he was not disrupting the meeting. See Amended Complaint, ¶ 9N. Additionally, the Meeting Minutes are not an actual transcript, they are a summary. The Meeting Minutes do not use the word "interrupt" in reference to Miller. Moreover, the Meeting Minutes suggest that the first time Miller allegedly speaks out of turn (and is accordingly "warned" by Simboli) he is asking another individual to repeat his question. This hardly seems disruptive. The next time Simboli speaks it is not clear that he is interrupting anyone. His comment follows a notation of "[t]here was a round of applause." Moreover, the person previously speaking does not resume speaking upon Miller's removal - again suggesting Miller was not interrupting a speaker. Finally, four other individuals spoke on the same topic as Miller. From this one can infer that Miller was not diverting the Borough's attention away from germane matters - other members of the public were interested in the topic as well. Again, this suggests that perhaps Miller was not being disruptive in speaking on this topic.

In short, Miller has raised his First Amendm ent claim above the speculative level and is entitled to proceed with discovery. The Partial Motion to Dismiss is denied in this regard.*fn5

II. Municipal Liability

The Defendants contend that the Amended Complaint fails to state a claim for an unconstitutional municipal policy or custom. More specifically, the Defendants contend that because the restrictions placed upon Miller's speech at the Borough meeting were constitutionally permissible, there can have been no First Amendm ent violation and thus no municipal liability can arise. I have already determ ined, however, that the First Amendment claim will go forward.

The Defendants also contend that there is no causal connection between the Borough's policy and the suppression of speech because Miller "was in fact perm itted to speak at the October 10, 2006 meeting." See Docket no. [20], p. 20. This is a factual matter that can not be resolved at this juncture. The Amended Complaint clearly indicates that Miller's speech was suppressed - he was removed from the meeting while attempting to speak. Accordingly, the Motion to Dismiss the claim of municipal liability is denied.

III. Intentional Infliction of Emotional Distress

The Defendants contend that Miller's claim for intentional infliction of emotional distress must be dismissed because his removal from the Borough meeting was prompted by his own actions - speaking out of turn and ignoring the rules of decorum. See Docket No. [20], p. 20. Again, as stated above, these facts are in dispute and cannot be resolved at this juncture. I decline to dismiss Miller's claim on this basis. Further, I am not prepared to rule as a matter of law at this stage of the litigation that suppressing someone's First Amendment rights and assaulting that person in retaliation for invoking those rights could not give rise to an intentional infliction of emotional distress claim. Consequently, the Motion to Dismiss is denied in this regard.


AND NOW, this 22nd day of April, 2009, after careful consideration, and for the reasons set forth in the accompanying Opinion, the Defendants' Partial Motion to Dismiss (Docket No. 19] is DENIED. The parties should continue to abide by the deadlines set in place in the Case Management Order at Docket No. [22].

Donetta W. Ambrose, Chief U.S. District Judge

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