Posted by: Patricia Salkin | September 13, 2015

Fed. Dist. Ct. in PA Finds Retaliation and First Amendment Claims Against Township were Sufficient to Survive a Motion to Dismiss

Plaintiffs John and Maureen Mirabella sued their neighbors, Susan and William Villard and Susan and Robert Braun with a variety of state law claims over the Defendants’ treatment of a town-owned open space adjacent to the Mirabellas’ and Neighbor Defendants’ properties. Plaintiffs claim that Neighbor Defendants were treating small sections of the open space as extensions of their backyards, clearing and mowing the open space and—in the case of the Villards—placing small structures on the land, including a shed, a fence, a playset, and a trampoline. Plaintiffs also brought Equal Protection and First Amendment claims against Montgomery Township, the Montgomery Township Board of Supervisors, and individual members of the Board of Supervisors Joseph P. Walsh, Michael J. Fox, Jeffrey W. McDonnell, Robert J. Birch, and Candyce Fluehr Chimera (collectively, “Municipal Defendants”) over Municipal Defendants’ treatment of the Mirabellas’ complaints about Neighbor Defendants’ actions.

At the outset the court noted that local governing bodies may only be sued directly under §1983 where the allegedly unconstitutional action implements or executes a policy statement, ordinance, regulation, or decision officially adopted and promulgated by that body’s officers. Here, Plaintiffs made no claims that the actions taken against them were part of a larger official policy or ordinance, nor a general custom or usage. Even though Walsh was the chairman of the Board, Plaintiffs had not alleged that he has final policymaking authority for the Board or the Township. Because of this, the court found that the Plaintiffs failed to state claims under § 1983 against Defendants who are local governing bodies, the Board of Supervisors and Montgomery Township. Despite neither party raising the issue, the court dismissed these claims. The Equal Protection claim likewise failed because the remedy the Mirabellas sought with their Complaint was not to be able to mow the open space themselves as their neighbors did, but to have the no-mowing ordinance enforced against their neighbors. The Mirabellas’ equal protection claim could therefore only be pursued as a failure-to-enforce action, which the Mirabellas have expressly disclaimed.

Plaintiffs’ multiple First Amendment claims failed one prong or the other of the test for qualified immunity, but one category of claims, the First Amendment violations predicated on conduct by Walsh and McDonnell after September 20, 2014, survived. Plaintiffs claimed that Walsh told Plaintiffs and many other town officials that Plaintiffs may never contact any town official publicly or privately except for the town attorney, in response to Plaintiffs’ statement that they would sue. By its plain language, Walsh’s email forbid Plaintiffs from contacting him, the Board, or town employees directly. Thus, Plaintiffs had adequately alleged that Walsh’s email is a content-based restriction on speech and directly interfered with their right to petition. Because no remaining federal claims share a common nucleus of operative fact with Plaintiffs’ state-law claims, or were so related that they formed part of the same case or controversy, the court dismissed Plaintiffs’ state law claims.

Mireabella v Villard, 2015 WL 4886439 (ED PA 8/17/2015)

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