The opinion of the court was delivered by: Stengel, J.
William Blasi, pro se, filed this action against his children‟s public school district under 42 U.S.C. § 1983, alleging a violation of his First Amendment right to free expression, his right to petition the government for redress, and his right to be free from retaliation for exercising his constitutional rights.
The defendant has filed a motion to dismiss the amended complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. For the following reasons, I will grant the motion in its entirety.
William Blasi is the father of two children, Oliver and Pierce, whom the amended complaint describes as being of mixed race, i.e., "part white and part ethnic Chinese." See Am.Compl. ¶ 3. In November 2009, both of these children made the defendant‟s 7th and 8th grade basketball teams, respectively, along with every other student who tried out. Id. ¶ 4.
The amended complaint alleges that the plaintiff‟s two sons were subsequently discriminated against and harassed due to their race and/or due to the plaintiff complaining that the Wind Gap Area Athletic Association, the defendant‟s feeder program, had discriminated against them. Id. Mr. Blasi also alleges that the defendant‟s coaches encouraged assaults on his children by other children who "were mainly white," and denied his sons equal opportunity to play basketball because "lesser skilled white boys" and "much lesser skilled white boys" played more than his sons. Id.
Mr. Blasi complained on numerous occasions to the defendant about the fact that his sons were fouled while playing basketball. Id. ¶ 5. From November 12, 2009 until December 23, 2009, the plaintiff sent seventeen emails to various officials and coaches of the defendant, where he complained about how the program was run, players being encouraged to foul excessively, the Blasi children being excessively fouled, and the discrimination of the coaches and their favoritism toward white student players. Id.
On December 22, 2009, Terry R. Barry, the principal of the Blasi children‟s Middle School, sent a letter to Mr. Blasi to inform him that he was prohibited from attending one home basketball game for violating the School District‟s policy, i.e., several provisions of the August 2005 Parental/Spectator Guidelines. Id. ¶ 7. Mr. Barry wrote:
It has come to my attention from our Middle School Basketball Coaches and our Athletic Director that you have recently sent scathing and threatening emails in which you berate and harass our coaches and make degrading and deplorable comments about 7th and 8th grade players in a most undignified manner, the likes of which I have never seen. This conduct, as you know, is a violation of the Parental/Spectator Guidelines (see enclosure) which was given to you at a parent meeting prior to the start of the 09-10 season and which you and your children signed on 11-19-09, acknowledging receipt of said Guidelines. . . .
As for our players (your sons‟ teammates!), your emails take on an even more disgusting and inappropriate tone in that you refer to Avery, LaBar, Hannah, Meserschmidt, Freda, Valleta, Flick, Alabanese, Pitchford, and Young as "suck players," "scrubs," "not even players," "should not be on the team," "unskilled," "un-coachable," "obese," "out of shape," and "laughing stock."
See Am.Compl. Exh. A. The letter made clear that further criticism of the coaches and players would not be tolerated by the defendant. See Am.Compl. ¶ 7A. Mr. Barry also warned that further violations of the parental rules would lead to a total ban of the plaintiff from future games. Id. Mr. Blasi was subsequently not permitted to attend the middle school basketball game on January 8, 2010. Id. ¶ 8. Mr. Barry indicated that any attempt by Mr. Blasi to attend that game would constitute trespassing. See Am.Compl. Exh. A.
A motion to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure examines the legal sufficiency of a complaint. Conley v. Gibson, 355 U.S. 41, 45-46 (1957). The factual allegations must be sufficient to make the claim for relief more than just speculative. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). In determining whether to grant a motion to dismiss, a federal court must construe the complaint liberally, accept all factual allegations in the complaint as true, and draw all reasonable inferences in favor of the plaintiff. Id.; see also D.P. Enters. v. Bucks County Cmty. Coll., 725 F.2d 943, 944 (3d Cir. 1984).
The Federal Rules of Civil Procedure do not require a plaintiff to plead in detail all of the facts upon which he bases his claim. Conley, 355 U.S. at 47. Rather, the Rules require a Ashort and plain statement@ of the claim that will give the defendant fair notice of the plaintiff=s claim and the grounds upon which it rests. Id. The Acomplaint must allege facts suggestive of [the proscribed] conduct.@ Twombly, 550 U.S. at 564. Neither Abald assertions@ nor Avague and conclusory allegations@ are accepted as true. See Morse v. Lower Merion School Dist., 132 F.3d 902, 906 (3d Cir. 1997); Sterling v. Southeastern Pennsylvania Transp. Auth., 897 F. Supp. 893 (E.D. Pa. 1995). A complaint, however, Amust satisfy . . . the simple requirements of Rule 8(a).@ Swierkiewicz v. Sorema N.A., 534 U.S. 506, 513 (2002). Following the Supreme Court=s decision in Twombly, Rule 8(a) now requires that the facts in a complaint plausibly suggest that the pleader is entitled to relief. Accordingly, to state a claim, a plaintiff must state enough factual matter, taken as true, to suggest the required element, which does not impose a probability requirement at the pleading stage, but instead simply calls for enough facts to raise a reasonable expectation that discovery will reveal evidence of the necessary element. Phillips v. County of Allegheny, 515 F.3d 224, 234 (3d Cir. 2008).
After filing a motion for a temporary restraining Order and receiving the defendant‟s response,*fn2 Mr. Blasi filed a six-count amended complaint. Although trained as an attorney, Mr. Blasi filed this pleading pro se. The obligation to liberally construe a pro se litigant‟s pleadings is well-established. Estelle v. Gamble, 429 U.S. 97, 106 (1976); Haines v. Kerner, 404 U.S. 519, 520-521 (1972). However, a pro se plaintiff is not excused from the duty to prove a "set of facts in support of his claim which would entitle him to relief." Id. With that in mind, I will assume that all of the counts in this amended complaint are brought under § 1983 because each count asserts alleged violations of the Constitution.
In Count 1, Mr. Blasi claims that he was retaliated against by the defendant for exercising his First Amendment*fn3 rights. He seeks a declaratory judgment declaring that his sanction, i.e., suspension from the home game, was unconstitutional. He characterizes the defendant‟s action against him as "viewpoint discrimination." In Count 2, Mr. Blasi seeks a declaration that the 2010 Guidelines and the Athletic Code are unconstitutional because they prohibit any inappropriate/antagonistic manner of confronting the coaching staff. In Count 3, Mr. Blasi alleges that forcing his boys to wear an "off-the-court" uniform violates his First Amendment right to raise his family. Count 4 seeks to stop the district‟s policy of a "closed gym" or a "closed practice," which prohibits parents or spectators from watching. This policy, Mr. Blasi argues, serves to hide the incompetence of coaches and their abusive conduct. In Count 5, Mr. Blasi wants the defendant prohibited from holding closed tryouts for the boys‟ tennis team; and prohibiting the tryouts at all unless he is allowed to videotape the tryouts and the practices. And finally, in Count 6, Mr. Blasi asks for a declaration that the separate one-game suspensions of his two sons were unconstitutional. Mr. Blasi says these suspensions are violative of his First Amendment rights. I note that the Blasi children are not plaintiffs in this case.
Under 42 U.S.C. § 1983, a private party may recover in an action against any person acting under the color of state law who deprives the party of his or her constitutional rights.*fn4 Therefore, in order to succeed on a claim under 42 U.S.C. § 1983, a plaintiff must demonstrate: (1) the violation of a right secured by the Constitution, and (2) that the deprivation was committed by a person acting under the color of state law. West v. Atkins, 487 U.S. 42, 48 (1988). Section 1983 does not by itself confer substantive rights, but instead provides a remedy for redress when a constitutionally protected right has been violated. Oklahoma City v. Tuttle, 471 U.S. 808, 816 (1985). To determine if a person was acting under the color of state law, the court must ask whether the plaintiff‟s deprivation was "caused by the exercise of some right or privilege created by the State" and whether the defendant "may fairly be said to be a state actor." Lugar v. Edmondson Oil Co., 457 U.S. 922, 937 (1982).
1. Count 2 -- Parental/Spectator Guidelines and the Athletic Code In Count 2, Mr. Blasi challenges as unconstitutional the School District‟s Parental/Spectator Guidelines, a two-page document directed at parents and spectators who are physically present at an athletic event. The document contains a list of "Do‟s" and "Do Not‟s," with three explicit sanctions listed for violations, the most grievous being a one-year suspension from attending any home school district athletic event. See Am.Compl. Exh. B. The Guidelines indicate that "the use of impersonal, electronic, handwritten means of expressing concerns is not an acceptable substitute for effective, cooperative, face-to-face communications." Further, the Guidelines prohibit the criticism of coaches, staff, and student players at basketball games and practices. Instead, the Guidelines suggest making arrangements to speak with ...