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McGee v. Conyngham Township

United States District Court, M.D. Pennsylvania

May 1, 2018

JOHN MCGEE, Plaintiff.


          Matthew W. Brann United States District Judge

         Before the Court for disposition is Defendants Conyngham Township, Conyngham Township Board of Supervisors, Conyngham Township Authority, Supervisor Linda Tarlecki, Supervisor Todd Croker, and Supervisor Joseph Shriner's Motion to Dismiss Plaintiff John McGee's Amended Complaint. For the following reasons, this Motion will be granted in part and denied in part.

         I. BACKGROUND[1]

         Plaintiff John McGee (“Mr. McGee”) filed an Amended Complaint on November 3, 2017 against Defendants Conyngham Township, Conyngham Township Board of Supervisors, Conyngham Township Authority (“Township Defendants”), Supervisor Linda Tarlecki, Supervisor Todd Croker, and Joseph Shriner (“Individual Defendants”) (collectively “Conyngham Township Defendants”).[2] This Amended Complaint contains four counts: (1) a First Amendment retaliation claim brought under 42 U.S.C. § 1983 (“Section 1983”), (2) a Fifth and Fourteenth Amendment Due Process claim brought under Section 1983, (3) intentional infliction of emotional distress, and (4) slander/libel[3].[4]Conyngham Township Defendants have moved to dismiss all counts.[5] The following factual background underlies the claims alleged.

         Plaintiff John McGee is a citizen of Conyngham Township, Columbia County, Pennsylvania (“Township”).[6] At the time this Amended Complaint was filed, Mr. McGee did not hold public office, [7] but regularly presented himself at various public events and made comments about possible theft and overpayment in the Township.[8] At some unspecified time prior to the institution of this action, Mr. McGee served upon Individual Defendants a Right to Know Request (“RTK”) seeking time cards and other information from the Township secretary, Defendant Linda Tarlecki (“Ms. Tarlecki”).[9] This request concerned possible over-billing and other abuses made by Ms. Tarlecki in her office.[10] At some unspecified time prior to the commencement of this action, Mr. McGee had also made comments to the press about this potential over-billing.[11]

         Sometime after the service of this RTK request and public comments, Mr. McGee was informed by Ms. Tarlecki that the information he requested was available for pick-up at her office.[12] At her office, Ms. Tarlecki is alleged to have served Mr. McGee with a reciprocal RTK request, issued by Defendants Conyngham Township, Linda Tarlecki, Todd Croker, and Joseph Shriner.[13] This RTK request sought Mr. McGee's personal income tax returns, his business income tax returns, personal income information, and other personal and confidential information.[14] Individual Defendants thereafter informed Mr. McGee that he must comply with this RTK, despite its lack of validity directed to a private citizen.[15] Indeed, at a Township Supervisor's meeting, Mr. McGee inquired, without correction, as to when his response was due and what the intended use was for this information.[16] Curiously, this RTK request has not been withdrawn.[17]

         Mr. McGee also avers that Individual Defendants attempted to publically smear his reputation.[18] Specifically, because he is a landlord who rents out residential apartments, Individual Defendants contacted various tenants to solicit unflattering information with the purpose of labeling him a “slumlord.”[19] Jane and John Doe tenants were contacted by Individuals Defendants.[20] Mr. McGee avers that the Does are disabled, and taking advantage of that fact, Individual defendants coerced them into writing a letter of complaint against him.[21] Stating that they received this letter out of the blue, Individual Defendants later read this letter aloud at a public meeting knowing that it was both false and offered without a public purpose.[22] Mr. McGee alleges that Individual Defendants read this letter for the sole purpose of harming his reputation and intimidating him in his pursuit of Township financial records.[23]

         Mr. McGee also alleges that Individual Defendants contacted Northampton County Children and Youth Services (“Children and Youth Services”) to report the presence of mold in one of his rented apartments.[24] Individual Defendants specifically relayed to Children and Youth Services that this mold, uncorrected by Mr. McGee, presented a danger to a minor within this building.[25] Children and Youth Services later arranged with Mr. McGee an inspection of this premises, and found no evidence of mold.[26] Finally, as a concluding act of retaliation, Mr. McGee avers that, since he spoke out about potential financial irregularities in the Township, Individual Defendants contacted the Internal Revenue Service and provided them with false information concerning his finances.[27] This alleged contact by Ms. Tarlecki led to Mr. McGee being told that he was to be audited.[28]Mr. McGee alleges that Individual Defendants took these actions to infringe on his right to free speech and due process.[29]

         II. LAW

         When considering a motion to dismiss for failure to state a claim upon which relief may be granted, [30] a court assumes the truth of all factual allegations in the plaintiff's complaint and draws all inferences in favor of that party;[31] the court does not, however, assume the truth of any of the complaint's legal conclusions.[32]If a complaint's factual allegations, so treated, state a claim that is plausible - i.e., if they allow the court to infer the defendant's liability - the motion is denied; if they fail to do so, the motion is granted.[33]

         III. ANALYSIS

         Conyngham Township Defendants move for both a more definite statement pursuant to Federal Rule of Civil Procedure 12(e) and, in the alternative, dismissal based upon failure to state a claim under Federal Rule of Civil Procedure 12(b)(6). I will analyze both of these requests below.

         A. Motion for a More Definite Statement.

         Federal Rule of Civil Procedure 12(e) allows for a party to move for a more definite statement in the rare case where the pleading is “so vague or ambiguous that the party cannot reasonably prepare a response.”[34] A motion for a more definite statement is committed to the sound discretion of the court, and will be granted only in a small subset of cases.[35] “The basis for granting such a motion is unintelligibility, not lack of detail.”[36] “With the exception of allegations of fraud and mistake, there is no requirement in the rules that pleading be particular.”[37]Conyngham Township Defendants here argue that this motion should be granted because Mr. McGee's Complaint “brings generality and lack of specificity to dizzying levels.”[38]

         I will deny this request. Having reviewed the Amended Complaint, I find it lacking in detail, but not at the level of unintelligibility as required by this standard.[39] Indeed, while I am able to discern the cause of actions pled and the factual basis for each, numerous pleading deficiencies exist. My analysis below, concerning Conyngham Township Defendants' motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6), better accounts for these failures.

         B. Motion to Dismiss Pursuant to Rule 12(b)(6) 1. Constitutional Claims

          In Counts I and II of his Amended Complaint, Mr. McGee alleges, pursuant to Section 1983, a violation of his rights under the First, Fifth, and Fourteenth Amendments to the United States Constitution. Section 1983 provides a cause of action to redress violations of federal law committed by state officials.[40] Section 1983 is not a source of substantive rights; rather, it merely provides a remedy for violations of constitutional rights.[41] To establish a claim under 42 U.S.C. § 1983, a plaintiff must demonstrate that: (1) the conduct complained of was committed by a person acting under color of state law; and (2) the conduct deprived the complainant of rights secured under the Constitution or federal law.[42] Conyngham Township Defendants have moved to dismiss each of these purported constitutional violations for failure to state a claim upon which relief can be granted. This request is well-founded and will be granted.

         a. First Amendment Retaliation

         The First Amendment to the United States Constitution protects a citizen's right to speech. “The First Amendment right to free speech includes not only the affirmative right to speak, but also the right to be free from retaliation by a public official for the exercise of that right.”[43] To prevail on a claim for First Amendment retaliation brought under 42 U.S.C. § 1983, a plaintiff must prove (1) that he had “engaged in [First Amendment-]protected activity, ” (2) that the defendant's allegedly retaliatory action was “sufficient to deter a person of ordinary firmness from exercising [her First Amendment] rights, ” and (3) that there was a “causal connection between the protected activity and the retaliatory action.”[44]

         Conyngham Township Defendants argue that the facts advanced by Mr. McGee fail to demonstrate a causal connection between the protected activity and alleged retaliatory conduct.[45] To establish a causal connection, Mr. McGee must prove, or at this posture-plead, either “an unusually suggestive temporal proximity between the protected activity and allegedly retaliatory action” or “a pattern of antagonism coupled with timing to establish a causal link.”[46] However, “[i]n the absence of that proof the plaintiff must show that from the ‘evidence gleaned from the record as a whole' the trier of the fact should infer causation.”[47] “A court must be diligent in enforcing these causation requirements because otherwise a public actor cognizant of the possibility that litigation might be filed against him, particularly in his individual capacity, could be chilled from taking action that he deemed appropriate and, in fact, was appropriate.”[48]

         Here, assuming satisfaction of the first two factors delineated above, [49] I nevertheless find that Mr. McGee has failed establish a causal connection between his protected speech-his Right to Know (RTK) request and public comments concerning billing abuses in the Township-and the alleged retaliatory actions of Defendants-their service of a Right to Know request upon him, the intimidation of his tenants into writing a letter and reading same at a public meeting, and spurring both Children and Youth Services and Internal Revenue Service audits of his property.[50] While I found that a lack of detail did not compel the issuance of Conyngham Township Defendant's motion pursuant to Federal Rule of Civil Procedure 12(e), that failure is now dispositive. Indeed, both of the above avenues of pleading causation require facts demonstrating a temporal proximity between the alleged protected activity and the retaliatory action taken.[51] Beyond the conclusory chronology of his Amended Complaint, Plaintiff has failed to surmount that bar. However, because amendment would not be futile in correcting this deficiency, dismissal of this claim will be without prejudice.[52]

         b. Fourteenth Amendment Substantive Due Process Claim[53]

         The Fourteenth Amendment provides that no person shall be deprived “of life, liberty, or property, without due process of law.”[54] This guarantee encompasses both a substantive and procedural component.[55] Here, while somewhat opaque from the face of his Amended Complaint, Mr. McGee clarifies in his opposition brief that he is alleging a substantive due process claim, rather than a procedural failure.[56] This opinion will therefore heed that direction.

         The substantive due process clause is a “component of the [Fourteenth Amendment] that protects individual liberty against ‘certain government actions regardless of the fairness of the procedures used to implement them.'”[57] Substantive due process, in turn, contains two separate analytical paths depending on whether the government action at issue is legislative or non-legislative.[58] This case involves the non-legislative or executive act of Defendant board members.[59] The Fourteenth Amendment primarily protects individuals from the arbitrary exercise of power through executive action through procedural due process.[60] However, our Court of Appeals has recognized that “a non-legislative government deprivation ‘that comports with procedural due process may still give rise to a substantive due process claim upon allegations that the government deliberately and arbitrarily abused its power.' ”[61] To prevail on a substantive due process claim under this theory, Mr. McGee must therefore prove that he has a “fundamental” liberty interest implicating Fourteenth Amendment protection and that a defendant's conduct against said interest was “so egregious, so outrageous, that it may fairly be said to shock the contemporary conscience.”[62] Such arbitrary action violates substantive due process if it (1) goes beyond “improper purpose” and “bad faith, ” and (2) has “no reasonable relation to legitimate government objectives.”[63]

         Here, Mr. McGee premises his substantive due process claim on the service of a Right to Know request upon him on an unidentified date.[64] He argues that this action, taken by Defendant Linda Tarlecki, violated his due process rights because it was so irrational and arbitrary as to “shock the conscience.”[65] At this juncture, however, the Court need not reach whether Mr. McGee has plausibly alleged conscience shocking behavior as the Amended Complaint fails to delineate, and this Court strains to discern, the property interest infringed. Indeed, as previously noted, a plaintiff “must establish as a threshold matter that he has a protected property interest to which the Fourteenth Amendment's due process protection applies.”[66] In making this determination and in contrast to a procedural due process challenge, the Third Circuit has noted that:

[W]hether a certain property interest embodies this “particular quality” is not determined by reference to state law, but rather depends on whether that interest is “fundamental” under the United States Constitution.[67]

         Mr. McGee's failure to meet this threshold element is therefore dispositive, and this claim will be dismissed.[68] However, as this Court cannot find futility at this juncture, leave to amend will be granted to the extent Mr. McGee can allege a fundamental right, as defined above, which was impinged by arbitrary government action.

         c. Monell Liability

         Conyngham Township Defendant also moves to dismiss the Section 1983 claims against Conyngham Township, Conyngham Township Board of Supervisors, and Conyngham Township Authority to the extent they are premised on Monell liability.[69] In Monell v. Department of Social Services of City of New York, the Supreme Court of the United States determined that, while municipal bodies may not be sued solely for violations perpetrated by its employees or agents, “it is when execution of a government's policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy, inflicts the injury that the government as an entity is responsible under § 1983.”[70] This municipal liability, based on a policy or custom, may arise in one of three ways. The Third Circuit in McGreevy v. Stroup detailed these methods as follows:

         First, the municipality will be liable if its employee acted pursuant to a formal government policy or a standard operating procedure long accepted within the government entity, (citation omitted); second, liability will attach when the individual has policy making authority rendering his or her behavior an act of official government policy, (citation omitted); third, the municipality will be liable if an official with authority has ratified the unconstitutional actions of a subordinate, rendering such behavior official for liability purposes, (citation omitted).

         Here, Mr. McGee clarifies in his brief in opposition that he is proceeding under the second theory of Monell liability, i.e. the attachment of liability based upon the actions of an individual with policy-making authority.[71] However, in order for municipal liability to exist under Monell, there must still be a violation of the plaintiff's constitutional rights.[72] Based on the discussion above, Mr. McGee has failed to state a federal civil rights claim against the Individual Defendants. He therefore cannot, as a matter of law, establish a Monell municipal liability claim against the municipal defendants, or Conyngham Township, Conyngham Township Board of Supervisors, and Conyngham Township Authority.[73]

         Dismissal, here relying on the success of Mr. McGee's other federal claims, will be without prejudice.

         2. State Law Claims a. Absolute Immunity

          Based on the allegations as recited, Mr. McGee also alleges both an intentional infliction of emotional distress claim and slander/libel, or defamation, claim.[74] Conyngham Township Defendants argue that, (1) to the extent alleged against Township Defendants, they are immune from liability from these state tort claims under both the Political Subdivision Tort Claims Act (“PSTCA”), and (2) to the extent alleged against Individual Defendants, these Township supervisors are entitled to absolute immunity afforded to high public officials.[75] Defendants are partly correct, and the Township Defendants are afforded immunity under the PSTCA.

         The Political Subdivision Tort Claims Act grants to municipal agencies immunity from liability for all state law tort claims.[76] The Act provides that “no local agency shall be liable for any damages on account of any injury to a person or property caused by any act of the local agency or an employee thereof or any other person.”[77] This immunity is however waived under § 8542 for a narrow subset of negligent acts by its agents or employees.[78] Here, none of the exceptions for negligent acts apply. Therefore, Defendants Conyngham Township and Conyngham Township Authority, as municipal agencies, are entitled to immunity from the intentional torts alleged.[79]

         Individual Defendants Linda Tarlecki, Todd Croker, and Joseph Shriner similarly move for immunity, but under the absolute immunity afforded to high public officials.[80] This immunity exempts high public officials from “all civil suits for damages arising out of false defamatory statements and even from statements or actions motivated by malice, provided the statements are made or the actions are taken in the course of the official's duties or powers.”[81] This doctrine of absolute immunity for high public officials has been expanded beyond defamation to exempt officials from liability arising from claims of retaliatory discharge, loss of consortium, invasion of privacy, and, most pertinently for this action, intentional infliction of emotional distress.[82] Courts have recognized that this immunity fulfills the deeper purpose of encouraging frank discussion by high public officials and thus protecting “society's interest in the unfettered discharge of public business and in full public knowledge of the facts and conduct of such business.”[83]“To determine if an individual defendant qualifies as a high public official for purposes of absolute immunity, the court must consider, on a case-by-case basis, ‘the nature of [the official's] duties, the importance of his office, and particularly whether . . . he has policy-making functions.' ”[84] Courts have found that borough council members, or here township supervisors, qualify as “high public officials” for purposes of absolute immunity.[85] Thus, if the statements complained of in Counts III and IV of the Amended Complaint occurred while the township supervisors were performing official duties, they have high public official immunity from those claims.

         Here, at this early procedural posture and with all facts construed in the light most favorable to Mr. McGee, I find that he has alleged facts which may bring the Individual Defendants outside the scope of absolute immunity's protection. Indeed, Mr. McGee tells a rather salacious story of Individual Defendants both soliciting letters from his tenants, and later receiving a critical letter from Jane and John Doe tenants.[86] Mr. McGee avers that Individual Defendants subsequently read this letter aloud at a public meeting for the sole purpose of labeling him a “slumlord, ”[87] and despite its false nature.[88] Mr. McGee argues that this solicitation and recitation of the letter had no public purpose and was beyond the official duties of Individual Defendants.[89] Therefore, at this preliminary stage of litigation, while they qualify as “high public officials, ” I find that Individual Defendants are not shielded by absolute immunity on these tort claims at this time.[90]

         b. Intentional Infliction of Emotional Distress

         Conyngham Township Defendants next move for the dismissal of Mr. McGee's claim for intentional infliction of emotional distress.[91] They state, as a basis for this request, that the conduct alleged by Mr. McGee is not as a matter of law so extreme and outrageous so as to permit recovery under this theory.[92] I agree that dismissal is warranted, but for a different reason.

         Under Pennsylvania law, “[t]o state a claim for intentional infliction of emotional distress, a plaintiff must plead that the defendant's conduct: (1) was intentional or reckless; (2) was extreme and outrageous; (3) actually caused the distress; and (4) caused distress that was severe.”[93] “In order to state a cognizable claim, the conduct must be so extreme in nature as to go beyond all possible bounds of decency such that it would be regarded as utterly intolerable to civilized society.”[94] “Generally, the case must be one with respect to which the recitation of facts to an average member of the community would arouse his resentment against the actor, and lead him to exclaim, ‘Outrageous!'”[95] “The liability clearly does not extend to mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities.”[96] Accordingly, a claim for intentional infliction of emotional distress must be dismissed where “[t]he defendants' alleged conduct is simply not sufficiently outrageous to sustain a claim of intentional infliction of emotional distress.”[97] As such, “[w]ith regard to the element of outrageousness, it is for the court to determine in the first instance whether the defendant's conduct may reasonably be regarded as so extreme and outrageous to permit recovery.”[98]The Court need not at this juncture determine whether the Individual Defendants' alleged conduct is “extreme and outrageous, ” as required to support this claim. I note that Pennsylvania law requires that some type of physical harm be shown in order to satisfy the severe emotional distress element.[99] Mr. McGee has failed to allege that he suffered any type of physical injury resulting from the allegedly extreme and outrageous conduct. Rather, within his Amended Complaint, he alleged the following injuries and damages in a conclusory fashion:

a. Emotional distress;
b. Physical distress;
c. Financial loss in spending time and efforts to generate the materials sought by the Defendant's in its request;
d. Public humiliation and embarrassment as being the subject of public scorn;
e. Legal fees, costs and expenses; and
f. Such other damages as this Honorable Court shall recognize.[100]

         Such conclusory allegations are insufficient to withstand a motion to dismiss.[101]However, because I cannot find that it would be futile for Mr. McGee to amend this claim, dismissal is again without prejudice.[102]

         3. ...

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