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James D. Schneller and v. Philadelphia Newspapers


August 28, 2012


The opinion of the court was delivered by: Stengel, J.


This case arises from actions surrounding a congressional election. Plaintiff, James D. Schneller, brings claims against a number of Defendants, including Philadelphia Newspapers, under various federal and state laws alleging injury to reputation and violations of constitutional rights. Defendants filed various motions to dismiss, which I now address.


Plaintiff was an independent candidate in the 2010 general election for Congress' 7th district of Pennsylvania. (Compl. at ¶ 1). "Friends of Jim Schneller" was the Plaintiff's registered candidate committee. (Compl. at ¶ 2). Schneller submitted Nomination Papers on August 2, 2010, in accordance with 25 P.S. § 2911(b).*fn1 Shortly thereafter, the Delaware County Republicans asserted that Democratic opponent, Bryan Lentz, and workers for the Democratic Party collected many of Schneller's signatures. (Compl. at ¶¶ 18-19).

Schneller alleges that the Defendants*fn2 then made these the "ongoing, headline fact of the race."*fn3 (Compl. at ¶ 25). Specifically, Schneller alleges that one or more of the Defendants defamed Plaintiff by charging that Schneller had the Democrats to thank for getting on the ballot, that Schneller colluded with the democratic circulators, that Schneller was a "spoiler" who would split the Republican vote, and that Schneller's conduct was "wrong, unwise, or irresponsible." (Compl. at ¶¶ 20-21, 25). Schneller also asserts that one or more of the Defendants declared that Schneller was guilty of misrepresentation and fraud because he suggested a Tea Party leader supported his campaign, and that he violated the Federal Election Campaign Act. (Compl. at ¶¶ 53, 67). Throughout the campaign Schneller alleges that the Defendants labeled Schneller an "ultraconservative," a "candidate from the right," and a member of the Tea Party. (Compl. at ¶¶ 52, 59).*fn4

The Defendants have filed motions to dismiss (Doc. Nos. 19, 20, &21). For the following reasons, I will grant these motions and dismiss this case.*fn5


A motion to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure for failure to state a claim upon which relief can be granted examines the legal sufficiency of the 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 "short 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 "complaint must allege facts suggestive of [the proscribed] conduct." Twombly, 550 U.S. at 555. Neither "bald assertions" nor "vague 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). The claim must contain enough factual matters to suggest the required elements of the claim or to "raise a reasonable expectation that discovery will reveal evidence of" those elements. Phillips v. County of Allegheny, 515 F.3d 224, 234 (3d Cir. 2008) (quoting Twombly, 550 U.S. at 555).

A case may be also dismissed under Rules 12(b)(1) and 12(h)(3) of the Federal Rules of Civil Procedure "[w]henever it appears by suggestion of the parties or otherwise that the court lacks jurisdiction of the subject matter. . . ." FED.R.CIV.P. 12(h)(3). Alternatively, a court choosing not to grant a motion to dismiss for lack of subject matter jurisdiction may, under Rule 12(e), grant a motion for a more definitive statement if "a pleading to which a responsive pleading is permitted is so vague or ambiguous that a party cannot reasonably be required to frame a responsive pleading. . . ." FED.R.CIV.P. 12(e).

Moreover, courts must liberally construe pro se complaints and "apply the applicable law, irrespective of whether [the] litigant has mentioned it by name." Higgins v. Beyer, 293 F.3d 683, 688 (3d Cir. 2002). Thus, a plaintiff's complaint, however inartfully pleaded, must be held to a less stringent standard than a formal pleading drafted by an attorney.*fn6 Estelle v. Gamble, 429 U.S. 97, 106 (1976).


A. Plaintiff Has Not Set Forth Facts Sufficient to State a Claim Under 42 U.S.C. § 1983

By its terms, Section 1983 does not create a substantive right; it merely provides a method for vindicating federal rights conferred by the United States Constitution and the federal statutes that it describes. Baker v McCollan, 443 U.S. 137 (1979). In order to establish a claim under Section 1983, a plaintiff must demonstrate (1) a violation of a right secured by the Constitution and the laws of the United States and that (2) the alleged deprivation was committed by a person acting under color of state law. American Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40 (1999).

Section 1983 excludes from its reach "merely private conduct," no matter how discriminatory or wrongful. American Mfrs. Mut. Ins. Co., 526 U.S. at 50. However, a private party may cause a deprivation of a constitutional right, but it is subjected to liability under Section 1983 only when it does so under color of law. Flagg Bros., Inc. v. Brooks, 436 U.S. 149, 156 (1978); West v. Atkins, 487 U.S. 42, 48 (1988). Moreover, when analyzing the exclusive government function test, the Supreme Court has held that the receipt of public funds and the performance of a function serving the public, alone, are not enough to make a private entity a state actor. Rendell-Baker v. Kohn, 457 U.S. 830, 840 (1982); Black, et al. v. Indiana School District, 985 F.2d 707, 710-11 (3d Cir. 1993) (a school bus driver is not performing an exclusive government function, even though paid by the state and performing a service for the public).

In Max v. Republican Committee of Lancaster County, 587 F.3d 198 (3rd Cir. 2009), a committee women sued the County Republican Committee alleging that her right to free speech was violated when she was reprimanded by the Committee for campaigning against endorsed candidates and asked to resign. Max, 587 F.3d at 199. The Court held that the Republican Committee of Lancaster County was not a state actor where it was merely the endorser of candidates and was not acting on behalf of or in concert with the Commonwealth of Pennsylvania.

Plaintiff claims that Defendant Bender is liable under § 1983 because Schneller claims he has "complete and unified control of the populace, in unison with the government," and, therefore, he is a state actor and acted under the color of state law. He alleges that all Defendants were "charged with the responsibility to maintain a qualified staff, establish procedures, and enforce adherence [.] to the standards and procedures of their profession [.] and to adhere to the statutory directive of the Constitution of the United States of America and acts of Congress and the Commonwealth of Pennsylvania." (Compl. at ¶ 71).*fn7

Here, Schneller fails to show that any of the Defendants is a state actor within the meaning of § 1983. Although a private entity that "is a willful participant in joint action with the State or its agents" acts "under color of state law" for purposes of § 1983, see Dennis v. Sparks, 449 U.S. 24, 27-28 (1980), there is no indication that the Commonwealth of Pennsylvania or one of its agents had any involvement in the actions alleged in the Complaint. Schneller has not demonstrated that "there is a sufficiently close nexus between the State and the challenged action of the regulated entity so that the action of the latter may be fairly treated as that of the State itself." Jackson v. Metropolitan Edison Co., 419 U.S. 345, 351 (1974). The traditional exclusive governmental function test requires that a private entity exercise powers traditionally and exclusively reserved to the State, such as exercising eminent domain. Wolotsky v. Huhn, 960 F.2d 1331, 1335 (6th Cir. 1992). Another factor to consider is whether the private party acted with the help or in concert with state officials. Mark v. Borough of Hatboro, 51 F.3d 1137, 1142 (3rd Cir. 1995).

Mr. Schneller baldly asserts that these Defendants were acting under color of law or were state actors but provides no supporting facts or reasoning. See Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (stating that "[a] pleading that offers [merely] labels and conclusions" or "naked assertions devoid of further factual enhancement" does not satisfy Fed. R. Civ. P. 8's pleading requirements). He claims that "Defendant party, committees, and media conglomerate acted under color of law and as state actors, and are a political subdivision. in unison with the government, including control of the dissemination of current events, commentary, and government policy.." (Compl. at ¶ 164).

Schneller alleges that Defendant Bender insinuated himself into a position of interdependence with the state to create joint participation, but this allegation is conclusory. Moreover, the activities of news organizations and reporters have consistently failed to satisfy the tests concerning state actors. See Scheetz v. Morning Call, Inc., 747 F. Supp. 1515, 1520 (E.D.Pa. 1990) (no liability in § 1983 suit against defendant newspaper for reporter's violation of plaintiff's privacy); Talmadge v. Herald News, 2007 U.S. Dist. LEXIS 78078 (D.N.J. Oct. 22, 2007) (a newspaper and its editor did not operate under color of law when the newspaper published an allegedly libelous article about plaintiff's prosecution); Oliver v. Philadelphia Daily News, 1989 U.S. Dist. LEXIS 5890 (E.D. Pa. May 26, 1989) (holding the Philadelphia Daily News is not a state actor and cannot be sued under § 1983); Picozzi v. WPVI-TV Channel 6 Action News, 2012 U.S. Dist. LEXIS 12162 (D.N.J. Feb. 1, 2012) (finding that as a general matter, news media cannot be deemed a "state actor" for the purposes of Section 1983 action because the operations of an entertainment facility are not powers traditionally exclusively reserved to the State, nor are they functions of sovereignty); Cannon v. Delaware, 2012 U.S. Dist. LEXIS 64958 (D. Del. May 8, 2012) (holding that the defendants Radio 1450 and News Journal were not "clothed with the authority of state law," and were not "persons" within the meaning of § 1983 (citing Evancho v. Fisher, 423 F.3d 347, 350 (3d Cir. 2005)).

Additionally, the role of advocate for a political candidate and the role of voters to elect an individual is not a traditional public function exclusively reserved for the State. Simply having to "adhere to the statutory directive of the Constitution of the United States of America and acts of Congress and the Commonwealth of Pennsylvania" does not create a sufficient nexus with the state. Because Mr. Schneller cannot establish state action, he cannot establish a cause of action under 42 U.S.C. § 1983 or related statutes,*fn8 which provide a necessary conduit through which the plaintiff might recover for alleged federal rights violations perpetrated against him.

Schneller has also failed to show that he was deprived of a Constitutional right. See American Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 49-50 (1999) ("To state a claim for relief in an action brought under § 1983, respondents must establish that they were deprived of a right secured by the Constitution or laws of the United States, and that the alleged deprivation was committed under color of state law."); Arment v. Commonwealth National Bank, 505 F. Supp. 911, 912-913 (E.D. Pa. 1981) (same).

A claim for deprivation of reputation is valid only where there is a "change or extinguishment of a right or status guaranteed by state law or the Constitution." Clark v. Township of Falls, 890 F.2d 611, 619 (3rd Cir. 1989); Paul v. Davis, 424 U.S. 693 (1976) (holding that defamation by itself did not harm a liberty interest protected under the Fourteenth Amendment). Therefore, injury to reputation alone is not a valid claim under § 1983. Boyanowski v. Capital Area Intermediate Unit, 215 F.3d 396, 401 (3d Cir. 2000) (stating federal courts are not to view defamatory acts as constitutional violations); Miller v. Hogeland, 2001 U.S. Dist. LEXIS 16538 (E.D. Pa. Oct. 10, 2001) (same).

In Kot v. Porter, 1990 U.S. Dist. LEXIS 16699 (E.D. Pa. Dec. 4, 1990), the court held that the defendant reporter and the Philadelphia Daily News were not state actors, and, even if the defendants were state actors, something more than damage to reputation was required to invoke the procedural protection of the Due Process Clause under plaintiff's § 1983 claim. Porter, 1990 U.S. Dist. LEXIS 16699, *1-2 (E.D. Pa. Dec. 4, 1990) (citing Paul v. Davis, 424 U.S. 693, 709-711 (1976)). The court found that the mere fact that defendant's article was insulting to plaintiff is not a violation of his constitutional rights. Id.

Schneller has not alleged an infringement on a protected right or interest.*fn9 He was a candidate for congress and there is nothing in the Complaint alleging that his rights to free speech in seeking office was denied or prohibited. The reputational harm alleged as a result of statements and articles concerning Schneller's candidacy, political affiliations, and participation in a nominating signature scheme do not deprive Plaintiff of a liberty or property interest under Due Process.*fn10 In fact, Plaintiff successfully fought a petition to remove his name from the ballot.

Therefore, Schneller's challenges under § 1983 fail to state a claim under Fed. R. Civ. P. 12(b)(6). Moreover, there is no indication that Schneller could amend his complaint so as to survive dismissal under Rule 12(b)(6). If a complaint is vulnerable to dismissal for failure to state a claim, a district court must first permit the plaintiff a curative amendment, unless amendment would be "inequitable or futile." Alston v. Parker, 363 F.3d 229, 235 (3d Cir. 2004). Because Schneller could not present additional information that would transform his allegations into viable claims, I conclude that amendment would be futile.

B. Plaintiff Has Not Sufficiently Set Forth Facts to Support Claims under 42 U.S.C. §§ 1985 and 1986

Section 1985(1) prohibits conspiracies to prevent individuals from holding office or discharging official duties.*fn11 Section 1985(1) states in relevant part that if "two or more persons . . . conspire to prevent, by force, intimidation, or threat, . . . [an officer of the United States] from discharging any duties thereof; . . . or to injure him in his person or property on account of his lawful discharge of the duties of his office, or while engaged in the lawful discharge thereof," then a cause of action exists.*fn12 42 U.S.C. § 1985(1).

First, Schneller's claims under § 1985 are not viable because the evidence does not support a finding of a conspiracy of any kind among the defendants. Plaintiff's civil conspiracy claim under § 1985(1)-(3) consists of nothing more than vague, conclusory allegations. See Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949, 173 L. Ed. 2d 868 (2009). It is not enough for a plaintiff to allege in his complaint such concerted action by merely claiming that the defendants must have participated or agreed, somehow, to air allegedly wrongful information. It is also insufficient to pepper the Complaint with allegations that the Defendants "cooperated," "conspired," or "acted in concert."*fn13 Aultman v. Padgett, 2003 U.S. Dist. LEXIS 18119, No. 03-3261, 2003 WL 22358445, *5 (E.D. Pa. Sept. 10, 2003) (holding Plaintiffs even under the liberal pleading standard assigned to pro se plaintiff had failed to allege the existence of a conspiracy to deprive him of his constitutional rights, as well as specific facts to support such a claim). In order to state a claim under § 1985, Schneller is required to plead that an actual agreement existed among the parties. See Startzell v. City of Phila., 533 F.3d 183, 205 (3d Cir. 2008). He did not, however, allege any facts indicating that any of the Defendants communicated with one another, or otherwise came to an agreement to conspire against him.*fn14 As a result, he has not plead enough facts to state a plausible claim for conspiracy under §1985. See Iqbal, 129 S. Ct. at 1949.

Section 1985(3) prohibits conspiracies to deprive a "person or any class of persons equal protection of the laws, or of equal privileges and immunities under the law . . . ." 42 U.S.C. § 1985(3).*fn15 While "color of law" is not necessary to a § 1985 action, to present a claim cognizable under 42 U.S.C.S. § 1985 the conspiracy and the acts in furtherance thereof must stem from a "class-based" animus. Keddie v. Pennsylvania State University, 412 F. Supp. 1264, 1275 (M.D. Pa. 1976) (citing Griffin v. Breckenridge, 403 U.S. 88 (1971)). The Complaint fails to allege a claim under this provision because it fails to allege discrimination against a "specific, identifiable class of persons." Farber v. City of Paterson, 440 F.3d 131, 135 (3d Cir. 2006) (quoting Aulson v. Blanchard, 83 F.3d 1, 5 (1st Cir. 1996)); Brown v. Philip Morris Inc., 250 F.3d 789, 806 (3d Cir. 2001).*fn16

The alleged actions taken by Defendants were directed only against Plaintiff as an individual and not as a member of some class or race. Plaintiff has not proven that he was a member of an identifiable class and that the actions against him were part of a general pattern of discrimination against such a class. There is also no allegation that Schneller was denied the right to vote or to support any candidate.*fn17

Finally, Schneller cannot state a § 1986 claim because a § 1985 violation is a prerequisite. 42 U.S.C. § 1986. Section 1986 is a "companion to Section 1985(3) and provides a plaintiff with a cause of action against any person who, knowing that a violation of Section 1985 is about to be committed and possessing the power to prevent its occurrence, fails to take action to frustrate its execution. See 42 U.S.C. § 1986." McCauley v. Computer Aid, Inc., 447 F. Supp. 2d 469, 476 (E.D. Pa. 2006); See also Remillard v. City of Egg Harbor City, 424 F. Supp. 2d 766 (D.N.J. 2006) ( plaintiffs could not recover under 42 USCS § 1986 because they did not allege that defendants had violated § 1985(3)). Therefore, if a plaintiff does not set forth a cause of action under § 1985, his claim under § 1986 necessarily fails as well, because "transgressions of § 1986 by definition depend on a pre-existing violation of § 1985." See e.g. Robison v. Canterbury Village, Inc., 848 F.2d 424, 431 n.10 (3d Cir. 1988).

C. The Court Declines to Exercise Supplemental Jurisdiction Pursuant to 28 U.S.C. § 1367(a)

Mr. Schneller also claims that the court has supplemental jurisdiction over his remaining state law claims pursuant to 28 U.S.C. § 1367(a), which provides:

[I]n any civil action of which the district courts have original jurisdiction, the district courts shall have supplemental jurisdiction over all other claims that are so related to claims in the action within such original jurisdiction that they form part of the same case or controversy under Article III of the United States Constitution. Such supplemental jurisdiction shall include claims that involve the joinder or intervention of additional parties.

In light of the fact that the court has dismissed all of Plaintiff's federal claims, the court will exercise its discretion to dismiss without prejudice all of Plaintiff's state claims. See 28 U.S.C. § 1367(c) (stating that a federal district court may decline to exercise supplemental jurisdiction over state law claims when the district court has dismissed all claims over which it has original jurisdiction). *fn18


In conclusion, while the Plaintiff attempts to bring federal claims in combination with his state law claims, for the reasons discussed above I will, dismiss the federal claims with prejudice. Additionally, I decline to exercise supplemental jurisdiction over the state law claims.

An appropriate Order follows.

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