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Angela M. Zimmerlink v. Vincent Zapotosky and

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA


May 18, 2011

ANGELA M. ZIMMERLINK, PLAINTIFF,
v.
VINCENT ZAPOTOSKY AND VINCENT A. VICITES,
DEFENDANTS.

The opinion of the court was delivered by: Judge David Stewart Cercone

Electronic Filing

Magistrate Judge Cathy Bissoon

MEMORANDUM ORDER

AND NOW, this 18th day of May, 2011, after de novo review of the record and upon due consideration of [27] the magistrate judge=s report and recommendation filed on April 11, 2011, and [28] defendants' objections thereto, IT IS ORDERED that [22] the Defendants' Motion to Dismiss Amended Complaint be, and the same hereby is, denied. The report and recommendation as augmented herein is adopted as the opinion of the court.

Defendants= objections are without merit. Each matter raised therein merely reiterates a construction of the amended complaint or argument which thoroughly was considered by the magistrate judge and found to be unavailing. First, A[a] defendant has the burden to establish that he is entitled to qualified immunity.@ Kopec v. Tate, 361 F.3d 772, 776 (3d Cir. 2004). As aptly set forth in the report and recommendation, the amended complaint sufficiently sets forth enough factual matter to advance a plausible claim for relief on First and Fourteenth Amendment grounds. Against this backdrop defendants' attempt to invoke the shield of legislative immunity as a component of qualified immunity falls well short of demonstrating conclusively that plaintiff's clearly established First Amendment rights to meaningful participation in the official business of the elected office were not violated by the alleged pattern of exclusion and retaliatory actions and/or that a reasonable public official in defendants' position would not have recognized that the alleged pattern would violate those rights. Second, whether the only conduct plaintiff can prove in support of her Equal Protection claim is duplicative of the activity receiving First Amendment protection is not an appropriate inquiry at this juncture. Consequently, defendants' motion to dismiss properly has been denied.

David Stewart Cercone United States District Judge

cc: Honorable Cathy Bissoon United States Magistrate Judge

Via: CM/ECF Electronic Filing

20110518

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