Opinion
Civil Action 3:21-CV-01315
12-13-2023
ROBERT C. BOLUS, SR., Plaintiff, v. WILLIAM GAUGHAN, Defendant.
MARIANI, J
REPORT AND RECOMMENDATION
KAROLINE MEHALCHICK, CHIEF UNITED STATES MAGISTRATE JUDGE
This is a civil rights action initiated upon the filing of a complaint by pro se Plaintiff Robert C. Bolus, Sr. (“Bolus”) on July 27, 2021. (Doc. 1). On May 9, 2023, Bolus filed a second amended complaint re-asserting claims under 42 U.S.C. § 1983 for violations of the free speech clause of the First Amendment and the equal protection clause of the Fourteenth Amendment against Defendant William Gaughan, the President of Scranton City Council (“Gaughan”). (Doc. 15). Now pending before the Court is a motion to dismiss the second amended complaint filed by Gaughan. (Doc. 16). For the reasons stated herein, it is recommended that the motion to dismiss be GRANTED. (Doc. 16).
I. Background and Procedural History
Bolus filed the original complaint in this matter on July 27, 2021, alleging a violation of his constitutional rights under the First Amendment and Fourteenth Amendment pursuant to 42 U.S.C. § 1983. (Doc. 1). On August 17, 2021, Gaughan filed a motion to dismiss for failure to state a claim. (Doc. 6). Bolus filed an amended complaint on August 24, 2021, rendering Gaughan's first motion to dismiss moot. (Doc. 8; Doc. 11). Gaughan filed a second motion to dismiss for failure to state a claim on September 7, 2021. (Doc. 9). On October 22, 2021, the Court issued an Order requiring Bolus to file a brief in opposition to Gaughan's second motion to dismiss by Friday November 5, 2021, or the motion would be deemed unopposed. (Doc. 11). Bolus failed to file a brief in opposition to Gaughan's second motion to dismiss, rendering the motion to dismiss deemed unopposed. (Doc. 9; Doc. 10). On June 21, 2022, the undersigned recommended that Defendant's motion to dismiss be granted and that Bolus be granted leave to file an amended complaint within 30 days of the Court's Order. (Doc. 9). On July 15, 2022, the Court adopted the undersigned's report and recommendation. (Doc. 13).
In his original complaint, Bolus listed The United States Secret Service, Mohegan Sun Arena at Casey Plaza, SMG, and Luzerne County Convention Center Authority as Defendants, but in amending his complaint, named Gaughan as the sole Defendant. (Doc. 1, at 2; Doc. 8, at 2). As such, The United States Secret Service, Mohegan Sun Arena at Casey Plaza, SMG, and Luzerne County Convention Center were terminated as Defendants on September 8, 2021.
Bolus filed an amended complaint on May 9, 2023. (Doc. 15). On May 23, 2023, Gaughan filed a motion to dismiss and a brief in support of his motion on that same day. (Doc. 16; Doc. 17). As of the date of this report and recommendation, Bolus has failed to file a brief in opposition to Gaughan's third motion to dismiss. The motion is deemed unopposed and ripe for disposition. (Doc. 9; Doc. 10).
In his second amended complaint, Bolus again alleges that his First and Fourteenth Amendments rights were violated by Gaughan at two city council meetings in March 2020. (Doc. 15, at 6-7). Bolus states that he attended a city council meeting on March 3, 2020, at which he exercised his right to speak. (Doc. 15, at 3). Bolus avers that at another city council meeting on March 10, 2020, which Bolus did not attend, Gaughan called Bolus an “ignorant fool,” and that such a comment was not “name-calling” because it could be proved by fact. (Doc. 15, at 4). Bolus alleges that comments violated Scranton City Council's rules of decorum for public meetings. (Doc. 15, at 4-5). Bolus also alleges that Gaughan called him a “weak-minded bully,” and stated that Bolus “spews uneducated venom.” (Doc. 15, at 5). Bolus avers that Gaughan attempted to deny Bolus of his right to free speech and that he was discriminated against due to his political speech. (Doc. 15, at 7). Bolus seeks compensatory and punitive damages, pre and post judgment interest, and reasonable costs and fees. (Doc. 15, at 8).
II. Legal Standard
Gaughan seeks to dismiss Bolus's second amended complaint under Rule 12(b)(6) of the Federal Rules of Civil Procedure. (Doc. 16; Doc. 17). Rule 12(b)(6) authorizes a defendant to move to dismiss for “failure to state a claim upon which relief can be granted.” Fed.R.Civ.P. 12(b)(6). To assess the sufficiency of a complaint on a Rule 12(b)(6) motion, a court must first take note of the elements a plaintiff must plead to state a claim, then identify mere conclusions which are not entitled to the assumption of truth, and finally determine whether the complaint's factual allegations, taken as true, could plausibly satisfy the elements of the legal claim. Burtch v. Milberg Factors, Inc., 662 F.3d 212, 221 (3d Cir. 2011). In deciding a Rule 12(b)(6) motion, the court may consider the facts alleged on the face of the complaint, as well as “documents incorporated into the complaint by reference, and matters of which a court may take judicial notice.” Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322 (2007).
After recognizing the required elements which make up the legal claim, a court should “begin by identifying pleadings that, because they are no more than conclusions, are not entitled to the assumption of truth.” Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009). The plaintiff must provide some factual ground for relief, which “requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). “[T]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678. Thus, courts “need not credit a complaint's ‘bald assertions' or ‘legal conclusions...'” Morse v. LowerMerion Sch. Dist., 132 F.3d 902, 906 (3d Cir. 1997) (quoting In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1429-30 (3d Cir. 1997)). The court also need not assume that a plaintiff can prove facts that the plaintiff has not alleged. Associated Gen. Contractors of Cal. v. Cal. St. Council of Carpenters, 459 U.S. 519, 526 (1983).
A court must then determine whether the well-pleaded factual allegations give rise to a plausible claim for relief. “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.” Palakovic v. Wetzel, 854 F.3d 209, 219-20 (3d Cir. 2017) (quoting Iqbal, 556 U.S. at 678) (internal quotation marks omitted); see also Sheridan v. NGK Metals Corp., 609 F.3d 239, 262 n.27 (3d Cir. 2010). The court must accept as true all allegations in the complaint, and any reasonable inferences that can be drawn therefrom are to be construed in the light most favorable to the plaintiff. Jordan v. Fox, Rothschild, O'Brien & Frankel, 20 F.3d 1250, 1261 (3d Cir. 1994). This “presumption of truth attaches only to those allegations for which there is sufficient factual matter to render them plausible on their face.” Schuchardt v. President of the U.S., 839 F.3d 336, 347 (3d Cir. 2016) (internal quotation and citation omitted). The plausibility determination is context-specific and does not impose a heightened pleading requirement. Schuchardt, 839 F.3d at 347.
With the aforementioned standard in mind, a document filed pro se is “to be liberally construed.” Estelle v. Gamble, 429 U.S. 97, 106 (1976). A pro se complaint, “however inartfully pleaded,” must be held to “less stringent standards than formal pleadings drafted by lawyers” and can only be dismissed for failure to state a claim if it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief. Haines v. Kerner, 404 U.S. 519, 520-21 (1972). Nonetheless, pro se plaintiffs are still subject to the basis pleading requirements of Rule 8. Rhett v. N.J. St. Super. Ct., 260 Fed.Appx. 513, 515 (3d Cir. 2008). The Third Circuit has further instructed that if a complaint is vulnerable to dismissal for failure to state a claim, the district court must permit a curative amendment, unless an amendment would be inequitable or futile. Grayson v. Mayview St. Hosp., 293 F.3d 103, 108 (3d Cir. 2002).
III. Discussion
Gaughan submits three grounds for dismissal pursuant to Rule 12(b)(6). (Doc. 17, at 2). First, Gaughan asserts that Bolus's complaint is out-of-time in violation of Court order and otherwise time-barred by the applicable two-year period of limitation. (Doc. 17, at 8-9). Second, Gaughan asserts that Bolus's First Amendment retaliation claim is subject to dismissal in light of the moving Defendant's First-Amendment Protections and Legislative Immunity. (Doc. 17, at 9-13). Finally, Gaughan argues that Bolus has failed to demonstrate that he was similarly situated to others as is required to plead a Fourteenth Amendment equal protection claim. (Doc. 17, at 13-14).
In his motion to dismiss, Gaughan argues Bolus's complaint is time-barred in violation of the Court's August 17, 2022, Order. (Doc. 13; Doc. 17). Gaughan also argues even if the Court were to construe Bolus's second amended complaint as a new pleading commencing the case anew, the claim is barred by the applicable two-year period of limitations. (Doc. 17, at 8). Although the Court notes the untimeliness of Bolus's complaint, because the Court finds that Bolus has failed to state a claim for First Amendment Retaliation and Fourteenth Amendment Equal Protection and is subject to dismissal to dismissal with prejudice, the Court declines to discuss the issue of timeliness further.
A. First Amendment Retaliation
Bolus alleges that during a city council meeting that occurred on March 10, 2020, Gaughan referred to Bolus as an “ignorant fool,” and said such a comment was not “namecalling” and did not violate the rules of decorum because it could be proved by facts. (Doc. 15, ¶ 22). Bolus states that Gaughan “attempted to use his seat to deny Plaintiff his right to free speech through insults and intimidation, which is a violation of the rules of decorum of Scranton City Council.” (Doc. 15, ¶ 29). “To plead retaliation for the exercise of First Amendment rights, a plaintiff must allege ‘(1) constitutionally protected conduct, (2) retaliatory action sufficient to deter a person of ordinary firmness from exercising his constitutional rights, and (3) a causal link between the constitutionally protected conduct and the retaliatory action.'” Mirabella v. Villard, 853 F.3d 641, 649 (3d Cir. 2017).
“[W]hether a plaintiff's First Amendment rights are adversely affected by retaliatory conduct ‘is a fact intensive inquiry that focuses on the status of the speaker, the status of the retaliator, the relationship between [the two parties], and the nature of the retaliatory acts.'” Ford v. City of Harrisburg, No. 1:17-cv-00908, 2019 WL 4412727, at *3 (M.D. Pa. Sept. 16, 2019) (alteration in original) (quoting Bartley v. Taylor, 25 F.Supp.3d 521, 532 (M.D. Pa. 2014) (quoting Suarez Corp. Indus. V. McGraw, 202 F.3d 676, 686 (4th Cir, 2000))) it is important to recognize the interest that a public official has in fulfilling his or her duties and his or her own First Amendment rights. See Ford, 2019 WL 4412727, at *3 (quoting Bartley, 25 F.Supp.3d at 532; (quoting Suarez, 202 F.3d at 686). When an alleged act of retaliation “tak[es] the form of the official's own speech” a specific test is employed to assess whether the speech was sufficient to deter exercise of a constitutional right. See Mirabella, 853 F.3d at 651; see also McLaughlin v. Watson, 271 F.3d 566, 573 (3d Cir. 2001). A public official's own speech must include “a threat, coercion, or intimidation, intimating that punishment, sanction, or adverse regulatory action [will] follow” in order to deter another's exercise of his or her constitutional rights. Ford, 2019 WL 4412727, at *4 (quoting Mirabella, 853 F.3d at 651).
Here, Bolus exercised his right to free speech when he spoke at a city council meeting on March 3, 2020. (Doc. 15, ¶ 11); Suarez, 202 F.3d at 685 (“The First Amendment right to free speech includes . . . the affirmative right to speak.”). However, Bolus has not demonstrated that Gaughan's own statements sufficiently deterred him from exercising his right to free speech. (Doc. 15, at 2-6). Although Bolus alleges that Gaughan's statements were intended to quash his free speech, Bolus has failed to allege a threat of adverse action or an imminent component to Gaughan's comments. (Doc. 15, 2-6). Bolus alleges that Gaughan stated that “comments like [ones that Bolus] previously made will not be tolerated.” (Doc. 15, ¶ 26). Gaughan's statement that comments like Bolus's will not be tolerated is not a threat of punishment, regulatory action, or sanction. See Ford, 2019 WL 4412727, at *5. Additionally, Gaughan's statement did not convey any imminent threat of harm to Bolus's free speech rights as Bolus was not in attendance at the March 10, 2020, meeting where Gaughan made the alleged statements. (Doc. 15, ¶ 20); see Bartley, 25 F.Supp.3d at 532 (quoting Suarez, 2020 F.3d at 687) (“[W]here a public official's alleged retaliation is in the nature of speech, in the absence of a threat, coercion, or intimidation intimating that punishment, sanction, or adverse regulatory action will imminently follow, such speech does not adversely affect a citizen's First Amendment rights, even if defamatory.”) (emphasis added). As Bolus has failed to allege that Gaughan's statements served as “a threat, coercion, or intimidation, intimating that punishment, sanction, or adverse regulatory action will follow” he has not stated a claim for First Amendment Retaliation by a public official. See Mirabella, 853 F.3d at 651
Gaughan also contends that his alleged statements were “uttered in an open City Council session relative to remarks made at a previous council meeting.” (Doc. 17, at 12). “The Supreme Court has . . . extended common law legislative immunity to local legislative officials.” Fowler-Nash v. Democratic Caucus of Pa. House of Representatives, 469 F.3d 328, 331 (3d Cir. 2006) (citing Bogan v. Scott-Harris, 523 u.S. 44 (extending legislative immunity to members of a city council). However, because the Court finds that Bolus has failed to state a claim for First Amendment Retaliation on the grounds that he has failed to allege Gaughan's speech created threats of adverse action or imminent intimidation, the Court declines to discuss the issue of legislative immunity further.
B. Fourteenth Amendment Equal Protection
Bolus alleges that he “was treated differently tha[n] any other commentator at Scranton City Council meetings by being unnecessarily singled out by name, called derogatory names, bullied, and intimidated, all against both The u.S. and Pennsylvania Constitutions and Scranton City Council's Rules of Decorum.” (Doc. 15, ¶ 31). The Equal Protection Clause of the Fourteenth Amendment prohibits state officials from exercising their discretionary authority for an intentionally discriminatory purpose. See Johnson v. Anhorn, 416 F.Supp.2d 338, 375 (E.D. Pa. 2006). There are two theories by which a plaintiff may establish an equal protection claim: the traditional theory and the class-of-one theory. Keslosky v. Borough of Old Forge, 66 F.Supp.3d 592, 614 (M.D. Pa. 2014). under the traditional theory, a “plaintiff must allege: (1) that he or she is a member of a protected class; and (2) that the government treated similarly situated individuals outside of the protected class differently.” Reed v. Chambersburg Area Sch. Dist., 951 F.Supp.2d 706, 716 (M.D. Pa. 2013). Alternatively, to state a claim under the class-of-one theory, “a plaintiff must allege that: ‘(1) defendant treated him differently from others similarly situated, (2) the defendant did so intentionally, and (3) there was no rational basis for the difference in treatment.'” Reed, 951 F.Supp.2d at 716 (quoting Hill v. Borough of Kutztown, 455 F.3d 225, 239 (3d Cir. 2006)). In the case at bar, Bolus proceeds under the class-of-one theory. (Doc. 15, at 7).
Bolus states that he was treated differently than any other commentator at Scranton City Council meetings by being unnecessarily singled out by name (Doc. 1, ¶ 31). “As to the first element, ‘[a]t the motion to dismiss stage, [the plaintiff] must allege facts sufficient to make plausible the existence of . . . similarly situated parties.'” Borrell v. Bloomsburg Univ., 955 F.Supp.2d 390, 405 (M.D. Pa. 2013) (citing Perano v. Twp. of Tilden, 423 Fed.Appx. 234, 238 (3d Cir. 2011)). “[T]he law in the Third Circuit does not require [the plaintiff] to show that the [comparators] are identical in all relevant respects but only that they are alike.” Borrell, 955 F.Supp.2d at 405; see also Southersby Dev. Corp. v. Borough of Jefferson Hills, 852 F.Supp.2d 616, 628 (W.D. Pa. 2012) (citing Startzell v. City of Phila, Pa, 533 F.3d 183, 203 (3d Cir. 2008)); Simmermon v. Gabbianelli, 932 F.Supp.2d 626, 632-33 (D.N.J. 2013); Thomas v. Coopersmith, No. 11-7578, 2012 WL 3599415, at *5 (E.D. Pa. Aug. 21, 2012). Bolus has failed to demonstrate how he was treated differently from others similarly situated to him. See Reed, 951 F.Supp.2d at 716. In order to demonstrate that he was treated differently than others in his situation, Bolus must allege that others who are similarly situated exist. See Hill, 455 F.3d at 239 (“[Plaintiff's] claim must fail because he does not allege the existence of similarly situated individuals.”). Here, Bolus does not mention any other individual in his complaint other than Defendant Gaughan, and his statement that he was treated differently than others “is entirely conclusory absent corresponding facts to provide proper context for this statement.” (Doc. 15, at 6-7); see Danielson v. Chester Tp., No. 13-5427, 2013 WL 6094578, at *6 (D.N.J. Nov. 19, 2013) (finding that a plaintiff's allegation that he “was prevented by Defendants from using his 3 minutes [in a council meeting] unlike others similarly situated” was too conclusory to allege discrimination as a class-of-one); cf. Danielson v. Chester Tp., No. 13-5427, 2014 WL 3362435, at *6 (D.N.J. July 9, 2014) (finding that a plaintiff who alleged that he attempted to critically contribute to discussion in a council meeting and was asked to stop speaking while others who spoke during the same period and whose statements were similarly critical were not asked to stop speaking, along with allegations of prior communications between the defendants about the plaintiff had asserted sufficient facts to support an equal protection claim under a class-of-one theory at the motion to dismiss stage). Bolus has failed to demonstrate with enough particularity that he was discriminated against as a class-of-one as he does not sufficiently allege that he was treated differently than others who were similarly situated to him. See Hill, 455 F.3d at 239.
C. Leave to Amend
The Third Circuit has instructed that if a complaint is vulnerable to dismissal for failure to state a claim, the district court must permit a curative amendment, unless an amendment would be inequitable or futile. Grayson, 293 F.3d at 108. Further, “[a] district court has ‘substantial leeway in deciding whether to grant leave to amend.'” In re Avandia Mktg., Sales Practices & Prod. Liab. Litig., 564 Fed.Appx. 672, 673 (3d Cir. 2014) (not precedential) (quoting Lake v. Arnold, 232 F.3d 360, 373 (3d Cir. 2000)). The Court does not find, at this juncture, that amendment should be granted. Bolus has previously been granted leave to amend and has failed to cure the deficiencies outlined herein. (Doc. 13). Additionally, he failed to file a brief in opposition to the motion to dismiss, leaving the motion unopposed. As such, the Court finds that granting further leave to amend would be inequitable or futile.
IV. Recommendation
Based on the foregoing, it is recommended that Gaughan's motion to dismiss (Doc.16) be GRANTED and Bolus's second amended Complaint (Doc. 15) be DISMISSED WITH PREJUDICE. (Doc. 16). It is further recommended that Bolus be denied any further leave to amend his complaint. Finally, it is recommended that the Clerk of Court be directed to CLOSE this case.
NOTICE
NOTICE IS HEREBY GIVEN that the undersigned has entered the foregoing Report and Recommendation dated December 13, 2023. Any party may obtain a review of the Report and Recommendation pursuant to Rule 72.3, which provides:
Any party may object to a magistrate judge's proposed findings, recommendations or report addressing a motion or matter described in 28 U.S.C. § 636(b)(1)(B) or making a recommendation for the disposition of a prisoner case or a habeas corpus petition within fourteen (14) days after being served with a copy thereof. Such party shall file with the clerk of court, and serve on the magistrate judge and all parties, written objections which shall specifically identify the portions of the proposed findings, recommendations or report to which objection is made and the basis for such objections. The briefing requirements set forth in Local Rule 72.2 shall apply. A judge shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made and may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge. The judge, however, need conduct a new hearing only in his or her discretion or where required by law, and may consider the record developed before the magistrate judge, making his or her own determination on the basis of that record. The judge may also receive further evidence, recall witnesses or recommit the matter to the magistrate judge with instructions.