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Ferris v. Borough of Baldwin

United States District Court, W.D. Pennsylvania

March 23, 2017

JOHN FERRIS, Plaintiff,


          Mark R. Hornak United States District Judge.

         This 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.

         Plaintiff 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 Counts.[1]

         I. BACKGROUND

         The 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.

         A few 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.

         In 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.


         Under 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.


         There 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.

         A. Count V: Retaliation

         In 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.[2]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).

         The 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 the prosecution.

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 ...

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