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Cvetko v. Derry Township Police Dep't

May 4, 2010

MIKE CVETKO, PLAINTIFF
v.
DERRY TOWNSHIP POLICE DEPARTMENT, BRIAN K. GRUBB, MICHAEL HENRY, TODD HARRER, JOHN DOE, HERSHEY ENTERTAINMENT & RESORTS, AND ROBERT MEALS, DEFENDANTS



The opinion of the court was delivered by: Christopher C. Conner United States District Judge

(Judge Conner)

MEMORANDUM

Plaintiff Mike Cvetko ("Cvetko") brings this civil rights action pursuant to 42 U.S.C. §§ 1983 and 1985, and Article 1 of the Pennsylvania Constitution. Cvetko seeks to hold each of the defendants liable for violating his First Amendment right to free speech and assembly, his Fourteenth Amendment right to equal protection of the laws, and his right to equal protection under the Pennsylvania Constitution. Presently before the court is a motion to dismiss filed by defendants Hershey Entertainment & Resorts ("HE&R") and Robert Meals ("Meals"). (See Doc. 17.) For the reasons that follow, the motion will be granted.

I. Statement of Facts*fn1

The allegations underlying Cvetko's complaint date back to the spring and early summer of 2007, when the stock price of the Hershey Foods/Hershey Company (hereinafter the "Hershey Company") was allegedly suffering. (Doc. 16 ¶ 21.) In an attempt to express disapproval of what he believed was the poor business strategy precipitating this stock loss, Cvetko commenced a series of public protests. On April 14, 2007, Cvetko positioned himself in the median of the roadway on the 1400 block of West Hersheypark Drive in Derry Township, displaying signs critical of the Hershey Company. (Id.) This location lies in close proximity to the Hersheypark amusement park, an entertainment venue operated by HE&R. (See id. ¶ 2.) After his initial protest, Cvetko returned to the 1400 block each Saturday for the next several months, displaying critical signs while standing in the median. (Id.)

On the morning of July 7, 2007, Cvetko was protesting in his familiar location, accompanied by an individual named Danielle Norcross. (Id. ¶ 23.) Meals, a security officer with HE&R, apparently became aware of Cvetko's presence and purportedly notified the Derry Township police that there was an individual along the roadway protesting Hershey Company practices. (Id. ¶ 24.) Defendant police officers Brian Grubb ("Grubb") and Todd Harrer ("Harrer") thereafter arrived at the scene and ordered Cvetko to remove himself from the median. (Id. ¶¶ 24(a)-(b)). Cvetko allegedly refused this directive, and he was arrested. (Id. ¶¶ 24(c)-(d)).

Cvetko commenced the instant action by filing a complaint on July 1, 2009. (See Doc. 1.) He alleges that all defendants retaliated against him for exercising his First Amendment rights, violated the Fourteenth Amendment and Pennsylvania Constitution by denying him equal protection of the laws, and engaged in a conspiracy to infringe upon his civil rights by denying him equal protection of the laws. Cvetko amended his complaint to include additional factual averments on August 5, 2009, (see Doc. 5), and amended his complaint for a second time on September 8, 2009, (see Doc. 16). On September 18, 2009, HE&R and Meals moved to dismiss the second amended complaint for failure to state a claim upon which relief can be granted. (See Doc. 17.) This motion has been fully briefed and is ripe for disposition.

II. Standard of Review

Rule 12(b)(6) of the Federal Rules of Civil Procedure provides for the dismissal of complaints that fail to state a claim upon which relief can be granted. FED. R. CIV. P. 12(b)(6). When ruling on a motion to dismiss under Rule 12(b)(6), the court must "accept all factual allegations as true, construe the complaint in the light most favorable to the plaintiff, and determine whether, under any reasonable reading of the complaint, the plaintiff may be entitled to relief." Gelman v. State Farm Mut. Auto. Ins. Co., 583 F.3d 187, 190 (3d Cir. 2009) (quoting Phillips v. County of Allegheny, 515 F.3d 224, 233 (3d Cir. 2008)); see also Kanter v. Barella, 489 F.3d 170, 177 (3d Cir. 2007) (quoting Evancho v. Fisher, 423 F.3d 347, 350 (3d Cir. 2005)). Although the court is generally limited in its review to the facts contained in the complaint, it "may also consider matters of public record, orders, exhibits attached to the complaint and items appearing in the record of the case." Oshiver v. Levin, Fishbein, Sedran & Berman, 38 F.3d 1380, 1384 n.2 (3d Cir. 1994); see also In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1426 (3d Cir. 1997).

Federal notice and pleading rules require the complaint to provide "the defendant notice of what the . . . claim is and the grounds upon which it rests." Phillips, 515 F.3d at 232 (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). To test the sufficiency of the complaint in the face of a Rule 12(b)(6) motion, the court must conduct a two-step inquiry. In the first step, the factual and legal elements of a claim should be separated; well-pleaded facts must be accepted as true, while mere legal conclusions may be disregarded. Fowler v. UPMC Shadyside, 578 F.3d 203, 210-11 (3d Cir. 2009). Once the well-pleaded factual allegations have been isolated, the court must determine whether they are sufficient to show a "plausible claim for relief." Ashcroft v. Iqbal, --- U.S. ---, 129 S.Ct. 1937, 1950 (2009) (citing Twombly, 550 U.S. at 556); Twombly, 550 U.S. at 555 (requiring plaintiffs to allege facts sufficient to "raise a right to relief above the speculative level"). A claim "has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, --- U.S. at ---, 129 S.Ct. at 1949. When the complaint fails to establish defendant liability, however, courts should generally grant plaintiffs leave to amend their claims before dismissing a complaint that is merely deficient. See Grayson v. Mayview State Hosp., 293 F.3d 103, 108 (3d Cir. 2002); Shane v. Fauver, 213 F.3d 113, 116-17 (3d Cir. 2000).

III. Discussion

Cvetko brings his constitutional claims pursuant to §§ 1983 and 1985(3) of Title 42 of the United States Code. These sections create no substantive rights, but instead provide a remedy for infringement of rights created by other federal laws. See Gonzaga Univ. v. Doe, 536 U.S. 273, 284-85 (2002) (discussing § 1983); Great Am. Fed. Sav. & Loan Ass'n v. Novotny, 442 U.S. 366, 372 (1979) (discussing § 1985). Section 1983 offers private citizens a means to redress violations of federal law committed by state officials. See 42 U.S.C. § 1983. The statute provides, in pertinent part, as follows:

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress . . . .

Id. To establish a claim under this section, the plaintiff must show a deprivation of a "right secured by the Constitution and the laws of the United States . . . by a person acting under color of state law." Kneipp v. Tedder, 95 F.3d 1199, 1204 (3d Cir. 1996) ...


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