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William J. Willson v. Thomas Yerke; Board of Supervisors of Township of Covington

January 31, 2011


The opinion of the court was delivered by: (Judge Munley)


Before the court is defendants' motion to dismiss the instant complaint. Having been fully briefed, the matter is ripe for disposition.


Plaintiff William J. Willson filed a complaint in this court on July 2, 2010. (See Doc. 1). Plaintiff was a member of Defendant Board of Supervisors of Covington Township from 1998 until 2009. (Id. at ¶ 3). Defendant Thomas Yerke served as Chairman of the Board of Supervisors during the period relevant to this litigation. (Id. at ¶ 4). Yerke controlled a majority of the supervisors during that time, and plaintiff alleges that supervisors allied with Yerke condoned, approved and participated in Yerke's illegal actions. (Id. at ¶¶ 10-11). Plaintiff avers that Defendant Yerke began a "systematic course of conduct designed to harass, intimidate, threaten, embarrass, and put the Plaintiff in a false light within the community" in 2009. (Id. at ¶ 12). The actions cited by the plaintiff as evidence of this treatment include: threats and harassment by Defendant Yerke toward plaintiff after plaintiff reported that Yerke used equipment owned by the Township for his personal use; obscene and defamatory notes aimed at plaintiff and left on public buildings; Yerke, seated in an township-owned vehicle, allegedly simulated an obscene act and made an obscene gesture when plaintiff drove by on a school bus with school children; at a public meeting, Yerke called plaintiff a coward and challenged him to a fight; he also frequently drove slowly and menacingly past plaintiff's home for no particular reason. (Id.).

Plaintiff also alleges other activities by defendants that prevented him from performing his duties as an elected official. The Defendant Board of Supervisors, allegedly at Yerke's direction, denied plaintiff access to the Township solicitor, locked him out of Township buildings, and charged him to make copies of records. (Id. at ¶ 13). When plaintiff complained to members of the Board of Supervisors about Yerke's actions, they failed to take any action. (Id. at ¶ 14). Members of the Board also did nothing when Yerke made harassing, intimidating, threatening and embarrassing remarks to the plaintiff in their presence. (Id. at ¶ 15). Plaintiff contends that all of these actions were part of an effort by Yerke to silence plaintiff and prevent him from bringing to light Yerke's illegal activities; they were not part of any official Township business. (Id.).

Plaintiff's complaint raises seven counts. Count I alleges that defendants engaged in retaliation against plaintiff for exercising his First Amendment rights by reporting on Yerke's allegedly illegal activities. Count II raises a claim that defendants' alleged harassment of plaintiff amounted to a violation of his Fourteenth Amendment Right to Privacy. Count III is a claim that defendants violated plaintiff's rights under the Fifth, Sixth and Fourteenth Amendment rights to due process and "equal access to justice." Count IV contends that defendants violated plaintiff's First, Ninth and Fourteenth Amendment rights of associational, family and personal liberty. Count V is a Fourth Amendment claim of violation of security and privacy of the home. Count VI alleges that all the defendants conspired to deprive plaintiff of his rights. Count VII raises a state-law invasion of privacy claim.


Plaintiff brings his claim pursuant to 42 U.S.C. § 1983. The court therefore has jurisdiction pursuant to 28 U.S.C. § 1331 ("The district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States."). The court has supplemental jurisdiction over the plaintiff's state law claims pursuant to 28 U.S.C. § 1367.

Legal Standard

Defendants have filed a motion to dismiss plaintiff's complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). When a defendant files a motion pursuant to Rule 12(b)(6), all well-pleaded allegations of the complaint must be viewed as true and in the light most favorable to the non-movant to determine whether "under any reasonable reading of the pleadings, the plaintiff may be entitled to relief." Colburn v. Upper Darby Township, 838 F.2d 663, 665-66 (3d Cir. 1988) (citing Estate of Bailey by Oare v. County of York, 768 F.3d 503, 506 (3d Cir. 1985), (quoting Helstoski v. Goldstein, 552 F.2d 564, 565 (3d Cir. 1977) (per curiam)). The court 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) (citations omitted). The court does not have to accept legal conclusions or unwarranted factual inferences. See Curay-Cramer v. Ursuline Acad. of Wilmington, Del., Inc., 450 F.3d 130, 133 (3d Cir. 2006) (citing Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 906 (3d Cir. 1997)).


Defendants raise several grounds for granting their motion to dismiss.*fn1 The court will address those grounds, as appropriate.

A. Plaintiff's Claims

1. First Amendment Retaliation

Defendants argue that plaintiff's claim for First Amendment retaliation must be dismissed. They contend that all of the retaliatory acts alleged by plaintiff constitute protected speech under the First Amendment, and therefore cannot be the subject of plaintiff's claim. The words and obscene gestures Yerke allegedly aimed at plaintiff also constitute speech, and cannot be the subject of plaintiff's claim.

A plaintiff seeking to recover on a First Amendment retaliation claim "must allege: (1) constitutionally protected conduct, (2) retaliatory action sufficient to deter a person of ordinary firmness from exercising his constitutional rights, and (3) a causal link between the constitutionally protected conduct and the retaliatory actions." Thomas v. Independence Twp., 463 F.3d 285, 296 (3d Cir. 2006). Defendants insist that case law in this circuit has established another element to this test when the retaliatory conduct in question involves the speech of a public official. According to the defendant, Yerke's speech implicates the First Amendment and the plaintiff must therefore demonstrate that the speech in question amounted to a "threat, coercion or intimidation."

To support this position, defendants cite to several cases, only one of which has been published and is precedential for this court. In McLaughlin v. Watson, 271 F.3d 566 (3d Cir. 2001), the plaintiffs, agents in the Pennsylvania Attorney General's Office, sued the United States Attorney for the Eastern District of Pennsylvania, asserting that the United States Attorney had impeded a criminal investigation and caused adverse employment actions to be taken against them. Id. at 568. One count of the complaint raised a First Amendment cause of action, alleging that the defendants prevented plaintiffs "from responding to negative comments about Plaintiffs contained in certain press releases." Id. at 569. One defendant, a prosecutor, sought dismissal of the complaint on qualified immunity grounds. Id. When the district court ruled against him, the defendant appealed. Id. The Court of Appeals found that the defendant had not violated any "clearly established" constitutional right by promoting an adverse employment action and was thus entitled to qualified immunity. Id. at 572. The court noted that "[w]hen a public official is sued for allegedly causing a third party to take some type of adverse action against the plaintiff's speech, we have held that defendant's conduct must be of a particularly virulent character." Id. at 573. A defendant who "speaks critically of plaintiff" or "urges or influences a party to take adverse action" does not violate the law. Id. Instead, "defendant must 'threaten' or 'coerce' the third party to act." Id. The court quoted a case from the Fourth Circuit, Suarez Corp. Indus. v. McGraw, 202 F.3d 676, 687 (4th Cir. 2000), for the proposition that:

The nature of the [defendant's] retaliatory acts has particular significance where the public official's acts are in the form of speech. Not only is there interest in having public officials fulfill their duties, a public official's own First Amendment speech rights are implicated. Thus, where a public official's alleged retaliation is in the nature of speech, in the absence of a threat, coercion, or intimidation, intimating that punishment, sanction, or adverse regulatory action will follow, such speech does not adversely affect a citizen's First Amendment rights even if defamatory.

McLaughlin, 271 F.3d at 573 (quoting Suarez, 202 F.3d at 687).

In an unpublished opinion, the Third Circuit Court of Appeals likewise cited Suarez to explain how the elements of a First-Amendment retaliation claim change when the retaliatory conduct alleged comes in the form of a speech by a public official. In Municipal Revenue Services v. McBlain, 347 Fed. Appx. 817 (3d Cir. 2009), the court explained that retaliatory conduct was conduct "'sufficient to deter a person of ordinary firmness from exercising his First Amendment rights.'" Id. at 824 (quoting O'Connor v. City of Newark, 440 F.3d 125, 128 (3d Cir. 2006)). If "however, the alleged retaliatory act is speech by a public official on a matter of public concern, other considerations come into play." Id. (Citing Suarez, 202 F.3d at 687). In Municipal Revenue Services, a company sued a lawyer and city solicitor who had spoken out at a public meeting against selling municipal tax liens to the plaintiff. Id. The solicitor complained about the fees that would be paid attorneys, contending that "'[l]oan sharking with attorneys' fees is all this is."' Id. at 822. The plaintiff alleged that the solicitor's comments had soured the business relationship between the company and the municipality, and amounted to retaliation. Id. The district court granted summary judgment and the plaintiff appealed. The Court of Appeals concluded that the solicitor's speech did not amount to retaliatory conduct. Id. at 825. No evidence existed to demonstrate that the solicitor had done more than argue forcefully against selling tax liens to the plaintiff. Id. Though defendant may have "over-spoke in expressing his opposition to the delinquent tax lien sale by equating MRS with a loan shark," he intended his words only "'in a loose, figurative sense, to demonstrate . . . strong disagreement'" that frequently characterizes public debate over awarding contracts. Id. (quoting Old Dominion Branch No. 496, National Association of Letter Carriers v. Austin, 418 U.S. 264, 284 (1974)). The speech did not amount to "'threats, intimidation or coercion." Id.

Defendants do not argue that plaintiff has failed to make out a retaliation claim under normal circumstances. Nor could they. Plaintiff alleges that he engaged in constitutionally protected conduct by complaining about Yerke's alleged misuse of Township property, that Yerke engaged in an intimidating and abusive course of conduct that would cause an ordinary person to remain silent in the future, and that Yerke's actions were motivated by plaintiff's speech. Plaintiff also alleges that the other individual defendants participated in this process of intimidation. Defendants instead argue that Yerke's speech is protected and thus cannot be the subject of a retaliation claim. The court finds the cases cited by defendants inapposite to the matter at hand. Unlike the speech in McLaughlin or Municipal Revenue, Defendant Yerke's speech did not involve a matter of public concern.*fn2 He did not speak about the desirability of hiring plaintiff to work a particular job or allege that plaintiff had somehow been involved in public corruption. Yerke did not urge anyone to take an adverse employment action against the plaintiff. Instead, his speech allegedly consisted of highly insulting personal slurs that were not directed toward any issue before the public. The purpose of limiting retaliation claims in situations where a public official speaks on matters of public concern is to allow open, if sharp, debate on important issues, not to immunize public officials for any speech they choose to make, no matter how personal or unrelated to public business. The court will therefore deny the motion on this point.

2. Privacy

Defendants next argue that plaintiff's privacy-right claims brought pursuant to the Fourteenth Amendment should be dismissed. Defendants contend that plaintiff has not identified the privacy right at issue, and none of the facts alleged in the complaint identify actions undermining plaintiff's interest in independence or in making decisions for himself. Plaintiff does not allege that defendants disclosed any protected personal information about him, like medical records. Nor does he allege that defendants interfered with his right to make personal decisions.

Plaintiff brings this action pursuant to 42 U.S.C. § 1983. Under that statute, an "action cannot be maintained unless the underlying act violates a plaintiff's Constitutional rights." Doe v. Southeastern Pa. Transp. Auth., 72 F.3d 1133, 1137 (3d Cir. 1995). If plaintiff's claim "is one of invasion of privacy, the complaint must be 'limited to those [rights of privacy] which are fundamental or implicit in the concept of ordered liberty.'" Id. (quoting Paul v. Davis, 424 U.S. 693, 713 (1976)). This privacy right "encompasses two separate spheres. One of these is an individual's interest in making certain decisions. The other is an interest in avoiding disclosure of personal information." Id. Plaintiff has not here alleged that the defendants interfered with any personal decisions he might have made. The inquiry, therefore, centers around whether defendants disclosed personal information in a way that violated the law.

In relation to his claim for violation of privacy rights, plaintiff's complaint states that his "right to privacy was violated by the Defendants' actions as set for [sic] above." (Complt. at ¶ 31). The complaint alleges that "[s]ince 2007 and continuing into the present, the Defendant Yerke, engaged in a systematic course of conduct designed to harass, intimidate, threaten, embarrass and put the Plaintiff in a false light within the community." (Id. at ¶ 12). As examples of such conduct, plaintiff points to Yerke's alleged threats and harassment after plaintiff criticized him and handwritten ...

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