Opinion
Civ. No. 00-CV-1559.
March 30, 2000.
FINDINGS OF FACT CONCLUSIONS OF LAW
Presently before the Court is a document entitled Precipe [sic] for Emergency Hearing for a Writ of Mandamus Injunctive Relief, filed by the Plaintiff, Bill O'Neill ("O'Neill"). A hearing was held in this matter today upon which the Court makes the following Findings of Fact, Conclusions of Law and decision.
FINDINGS OF FACT
1. O'Neill is a candidate for the nomination of the Republican Party for the Pennsylvania State Assembly in the 178th District. The nomination will be decided in a primary election to be held April 4, 2000.
2. Defendants Township of Northampton ("Northampton"), Township of Lower Southampton ("Lower Southampton"), Township of Upper Southampton ("Upper Southampton") and Township of Warminster ("Warminster") are municipalities located within the 178th Assembly District.
3. Each Defendant requires that candidates for political office post a bond prior to placing signs advertising a candidate in the municipality. These bonds range from $50.00 to $135.00. The purpose of the bond is to ensure that signs will be removed from view and cleaned up following the election. It is also undisputed that the Defendants do not cash checks prior to the time of clean-up.
4. O'Neill has paid the required bond in Northampton, Upper Southampton and Lower Southampton.
5. O'Neill has not paid the bond in Warminster. The decision not to pay the bond in Warminster was made completely by O'Neill.
6. O'Neill is currently displaying signs in Warminster. There is no evidence that any of his signs have been removed by Warminster.
7. The bond requirement applies to all signs, whether or not political, in each of the Defendant municipalities.
8. In some instances, several candidates are pooled into a single bond. O'Neill has, in fact, availed himself of this process in Northampton. No Defendant has denied this process to O'Neill.
9. While O'Neill alleges that Defendants deny political candidates access to particular appropriate public places, he has failed to prove any particular appropriate public place where he has not been allowed to place a sign.
CONCLUSIONS OF LAW
1. In order to succeed on his application for a preliminary injunction, the burden is upon O'Neill to show: (1) a likelihood of success on the merits of his claim; (2) irreparable harm to Plaintiff absent an injunction; (3) harm to the Defendants and other parties would not be substantial if an injunction were granted; and (4) the public interest favors the injunction.Premier Dental Prods. Co. v. Darby Dental Supply Co., 794 F.2d 850, 851-52 (3d Cir. 1986).
2. If O'Neill fails to meet any of the four factors, the injunction must be denied. Merchant Evans v. Roosevelt Bldg. Prods., 963 F.2d 628, 632-33 (3d Cir. 1992).
3. The grant of an injunction, prior to a full hearing on the merits, is an extraordinary remedy and requires Plaintiff to meet a high burden of proof. Chez Sez III Corp. v. Township of Union, 945 F.2d 628, 634 (3d Cir. 1991).
4. There is no evidence that the Defendants have attempted to suppress a particular viewpoint. See Bolger v. Youngs Drug Prods. Corp., 463 U.S. 60, 65, 72 (1983).
5. O'Neill has not shown that by requiring a bond, the Defendants have acted outside of their constitutional power, are not furthering a substantial or important governmental interest, that the governmental interest is related to free expression or that any restriction on First Amendment freedom is no greater than essential to the furtherance of that interest. See United States v. O'Brien, 391 U.S. 367, 377 (1968).
6. Accordingly, O'Neill has not demonstrated a likelihood of success on the merits of his claim.
7. Because O'Neill has complied with the bond requirement in three municipalities and stands to recoup his checks upon removing his signs, he has not demonstrated that he will suffer irreparable harm absent an injunction.
8. Because O'Neill has placed signs in Warminster and they have not been removed, he has not demonstrated that he will suffer irreparable harm absent an injunction.
9. Accordingly, at least two factors prevent granting the requested injunction.
10. There is no evidence to support O'Neill's contention that party-endorsed candidates are given favorable treatment by the Defendants.
11. There were objections to service of process. The hearing was held, despite the objections, the hearing was held in view of O'Neill's pro se status and all Defendants having received notice of and appearing at the hearing.
ORDER
AND NOW, this 30th day of March, 2000, upon consideration of the Precipe [sic] for Emergency Hearing for a Writ of Mandamus Injunctive Relief, filed by Plaintiff, Bill O'Neill ("O'Neill"), and a hearing held in this matter, it is ORDERED the Motion for a Preliminary Injunction is DENIED.
ORDER — MEMORANDUM
EDMUND V. LUDWIG, J.
AND NOW, this 29th day of March, 2000, the above actions are consolidated, and defendants' motions to dismiss the complaints of plaintiff Gaylord Neal are granted. Fed.R.Civ.P. 12(b)(6). Plaintiff may amend by April 18, 2000 if he can do so within the constraints of Fed.R.Civ.P. 11 (claims must be warranted by existing law: otherwise, sanctions may be imposed).
These complaints, filed pro se, do not state a claim on which this court can grant relief. As referenced in the caption of the 1999 action, these are the fifth and sixth actions that plaintiff has filed over a period of nine years involving the same subject matter and against the same defendants or official positions. The prior actions were decided in defendants' favor, the last by summary judgment on the ground of res judicata. Neal v. Summers, Civ. No. 93-2822, 1993 WL 381444 (E.D.Pa. Sept. 28, 1993). The recent actions apparently involve more recent developments.
These previous actions are 91-CV-4684, 91-CV-6417, 91-CV-7987, and 93-CV-2822.
According to the complaints, on November 1, 1999, plaintiff's daughter was again removed from his custody by the Philadelphia Department of Human Services. Although the allegations are not entirely clear, they appear to say that a protective order was issued by a family court judge barring plaintiff from visiting his daughter. The purported reason was that plaintiff was a "sexual predator" which plaintiff denies. It is also alleged that plaintiff was not informed of a hearing and was advised that he could not appeal the order without the family court judge's approval. The complaints assert "14th Amendment due process and equal protection" violations but does not plead any statutory vehicle, such as 42 U.S.C. § 1983.
The same issue was the crux of the prior actions, but what transpired between 1993 and 1999 is a matter of conjecture.
Plaintiff's response to defendants' 12(b)(6) refers to 42 U.S.C. § 1981 1985. Defendants move to dismiss the complaint under the Eleventh Amendment and 1983.
Without going into the technicalities of proper pleading, it is apparent that plaintiff needs legal advice as to whether or not he has a claim and, if so, in what court or counts to file it. While he has requested appointment of counsel by this court, there is no pool or panel of volunteer attorneys from which such an appointment can be made. Instead, this court sent plaintiff instructions as to how he might find pro bono or other counsel.
Plaintiff should also be made aware that in family court matters, one can always go back to the family court and file another petition if a serious mistake or a material change in circumstances has occurred. In a case of this type, it should be up to the family court to determine what is in the interest of the child. One of the present complaints suggests that plaintiff, who appears to be nonwhite, is a victim of a "good old boy" white "conspiracy." That kind of unsupported accusation does not help plaintiff's case. It is understandable and no doubt commendable that plaintiff wants to have his daughter re-united with him. But inflammatory charges of race discrimination, unless well founded, will serve only to weaken plaintiff's position.
Plaintiff should re-double his efforts to find counsel, and if this court finds counsel willing to undertake his representation, it will notify him promptly. If the complaints are not amended by April 18, 2000, these actions will be dismissed.