United States District Court, W.D. Pennsylvania
R. Hornak United States District Judge.
case centers on a trash bag filled with $11 of
municipally-purchased mulch, allegations of local government
intrigue at its worst, and the interaction of each of those
things with Plaintiff John Ferris' ("Ferris")
service as a borough councilman.
alleges seven (7) claims in his 42 U.S.C. § 1983 action
against Defendants Borough of Baldwin ("Baldwin"),
Michael Scott ("Scott"), and Stanley Lederman
("Lederman"): violation of the First Amendment
through malicious prosecution (Count I), violation of the
Fourteenth Amendment's procedural due process protections
(Count II), violation of the First and Fifth Amendments'
"zones of privacy" (Count III), conspiracy (Count
IV), violation of the First Amendment through retaliation
(Count V), municipal liability (Count VI), and intentional
infliction of emotional distress (Count VII). The operative
Complaint in this case is Plaintiffs Second Amended
Complaint, ECF No. 38. Pending before the Court is
Defendants' Motion to Dismiss Plaintiffs Amended
Complaint, ECF No. 20, and Defendants' Supplemental
Motion to Dismiss, ECF No. 39, which the Court and parties
have elected to treat collectively as a Motion to Dismiss
Plaintiffs Second Amended Complaint ("SAC"). ECF
No. 37. For the reasons that follow, Defendants' Motions
are granted as to all Defendants and all
facts alleged in Plaintiffs SAC, which the Court will accept
as true for the purposes of deciding the pending Motions,
state that Ferris is a resident of Pennsylvania and that
Baldwin Borough is a municipal corporation located in
Pennsylvania. ECF No. 38 at ¶¶ 4-5. At all relevant
times, Scott and Lederman were Baldwin's Chief of Police
and Solicitor, respectively. Id. at ¶¶
6-7. From 1995 through 2015, Ferris was one of Baldwin's
councilmen and was also the Chairman of Baldwin Council's
Public Works Committee. Id. at ¶ 9. In August
2012, Ferris began voluntarily beautifying Colewood Park, a
public park in Baldwin. Id. at 12. He did not ask
Baldwin for extra compensation for the task. Id. at
14. In November 2012, Ferris "openly criticized"
Baldwin's Council for firing its Public Works Foreman.
Id. at ¶ 10. In April 2013, a team of workers
supervised by Mark Stevenson, Baldwin's Director of
Public Works, placed excess mulch outside of Colewood Park.
Id. at ¶ 13; ECF No. 21 at 3. Ferris asked
Stevenson if he could take some of the mulch to use at his
home, and Stevenson authorized him to do so. ECF No. 38 at
¶¶ 14-15. Ferris then placed eleven ($11)
dollars' worth of mulch in a garbage bag and spread it on
his front yard. Id. at ¶ 15.
weeks later, on May 15, 2013, Baldwin's Council President
was informed that Ferris had stolen mulch from Baldwin, so he
filed a complaint against Ferris with the Allegheny County
District Attorney's Office. Id. at ¶ 16.
Ferris was interviewed by a Baldwin police officer regarding
the mulch, and Ferris explained that Stevenson had given him
permission to take it. Id. at ¶ 17. However,
when speaking to the same police officer, Stevenson denied
giving Ferris permission to take the mulch and stated that
what he told Ferris was "[y]ou're on Council, do
what you want." Id. at ¶ 18.
August 2013, Lederman and Scott informed Ferris that they
would not press charges against him for theft of the mulch if
Ferris publicly apologized for taking the mulch. Id.
at ¶ 19. On August 22, 2013, at the Baldwin Council
meeting, Ferris orally apologized for taking the mulch. He
also apologized in writing, and his apologies were covered by
the local media. Id. at ¶ 21. Despite the fact
that he apologized to the Baldwin community, Ferris was later
charged with one count of theft by unlawful taking and one
count of receiving stolen property. Id. at ¶
23. He pled guilty to disorderly conduct on October 30, 2013,
id. at ¶ 24, and filed this civil suit on July
21, 2015. See ECF No. 1.
STANDARD OF REVIEW
Federal Rule of Civil Procedure 12(b)(6), the Court may grant
a motion to dismiss when a plaintiff has "fail[ed] to
state a claim upon which relief can be granted."
Fed.R.Civ.P. 12(b)(6). Accordingly, the Court may not dismiss
a complaint that contains "enough facts to state a claim
to relief that is plausible on its face." Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955,
1974, 167 L.Ed.2d 929 (2007). "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. The
plausibility standard is not akin to a 'probability
requirement, ' but it asks for more than a sheer
possibility that a defendant has acted unlawfully."
Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct.
1937, 1949, 173 L.Ed.2d 868 (2009) (internal citations
omitted). To evaluate a motion to dismiss, the Court must
accept as true all of the facts delineated in a
plaintiffs' complaint. Id.
are seven (7) Counts in this case, and the Court will address
each of them separately, in the order that in the Court's
estimation is the most logical.
Count V: Retaliation
Count V of the SAC, Ferris alleges that Scott and Lederman
tricked him into falsely confessing to stealing the mulch in
order to prosecute him in retaliation for him exercising his
First Amendment rights when he criticized Baldwin's
Council for firing the Borough's Public Works Foreman.
ECF No. 38 at ¶ 69-77.Scott and Lederman, on the
other hand, assert that they are entitled to qualified
immunity for Ferris' retaliation claim. In order to
determine if Scott and Lederman are entitled to qualified
immunity for their actions, the Court will consider two
questions: "[f]irst, whether the facts alleged by the
plaintiff show the violation of a constitutional right, and
second, whether the right at issue was clearly established at
the time of the alleged misconduct." Werkheiser v.
Pocono Twp., 780 F.3d 172, 176 (3d Cir.), cert,
denied sub nom. Werkheiser v. Pocono Twp., Penn., 136
S.Ct. 404, 193 L.Ed.2d 315 (2015).
Court first concludes that Ferris has not alleged facts that
show the violation of a clearly established constitutional
right. As the Third Circuit has explained:
To establish a First Amendment retaliation claim predicated
on 42 U.S.C. § 1983, a plaintiff must prove the
following elements: (1) constitutionally protected conduct;
(2) that the defendant took adverse action sufficient to
deter a person of ordinary firmness from exercising his
rights; and (3) a causal connection between the two. There is
also a fourth element required to state a First Amendment
retaliation claim premised on an investigation that leads to
a decision to prosecute: the absence of probable cause for
Walker v. Clearfield Cty. Dist. Attorney, 413
F.App'x 481, 483 (3d Cir. 2011) (internal citations
omitted). In this case, there are numerous problems with