Kuhns v. City of Allentown

Citation636 F.Supp.2d 418
Decision Date31 March 2009
Docket NumberCivil Action No. 08-cv-2606.
PartiesKathleen KUHNS; Joyce Mazalewski; and Kathleen Teay, Plaintiffs v. CITY OF ALLENTOWN; Chief of Police Roger MacLean, both individually and in his official capacity; Allentown Women's Center, Inc.; and Jennifer Boulanger, Defendants.
CourtUnited States District Courts. 3th Circuit. United States District Court (Eastern District of Pennsylvania)

Denis Brenan, Esquire, for Plaintiffs.

Thomas E. Zemaitis, Esquire, Elizabeth S. Campbell, Esquire, Susan Frietsche, Esquire, David S. Cohen, Esquire, for Defendants, Allentown Women's Center, Inc. and Jennifer Boulanger.

OPINION

JAMES KNOLL GARDNER, District Judge.

This matter is before the court on the Motion to Dismiss of Defendants Allentown Women's Center and Jennifer Boulanger filed July 24, 2008.1 Upon consideration of the briefs of the parties and for the reasons articulated in this Opinion, I grant in part and deny in part the motion to dismiss.

SUMMARY OF DECISION

Specifically, I grant defendants' motion to dismiss Count II of plaintiffs' complaint for failure to state a claim upon which relief can be granted. I dismiss Count II, a claim pursuant to 42 U.S.C. § 1983 for deprivation of plaintiffs' rights to religious freedom and freedom of expression under the Pennsylvania Constitution because § 1983 provides a remedy for the violation of federal, not state, constitutional rights.

I also grant defendants' motion to dismiss Count III of plaintiffs' complaint, a claim pursuant to 42 U.S.C. § 1983 alleging violation of plaintiffs' federal right to equal protection of the law for violation of their freedom of speech under the First Amendment to the United States Constitution, and alleging violation of plaintiffs' state right to equal protection of the law for violating their freedom of expression under Article I, § 7 of the Pennsylvania Constitution. I dismiss the claims under the state Constitution for the same reasons I dismiss Count II. I dismiss the equal protection of the law claims under the federal Constitution as duplicative of plaintiffs' First Amendment claim in Count I.

I deny defendants' motion to dismiss Count I of the complaint because I find that plaintiffs have sufficiently pled claims under § 1983 that defendants deprived plaintiffs of their federal rights under the First Amendment to freedom of speech and religion. I conclude that the right of free speech guarantees every citizen that he may reach the minds of willing listeners and to do so there must be opportunity to win their attention. In this case, plaintiffs have sufficiently alleged that defendants' efforts to drown out plaintiffs' religious anti-abortion message infringe upon plaintiffs' First Amendment rights.

Finally, I deny defendants' motion to dismiss Count IV of the complaint because I find that plaintiffs have sufficiently pled a pendent state law claim for public nuisance under Pennsylvania law. I conclude that Pennsylvania recognizes a private cause of action for public nuisance. I find plaintiffs' allegation that defendants have blocked pedestrian and motor vehicle traffic on a public street in Allentown, Pennsylvania, to be sufficient because obstruction of a public highway is a public nuisance. I also conclude that under Pennsylvania law, civil rights violations can be specific injuries sufficient to state claims for public nuisance.

JURISDICTION

Jurisdiction in this case is based upon federal question jurisdiction pursuant to 28 U.S.C. § 1331. The court has supplemental jurisdiction over plaintiffs' pendent state law claims. See 28 U.S.C. § 1367.

VENUE

Venue is proper pursuant to 28 U.S.C. § 1391(b) because the events giving rise to plaintiffs' claims allegedly occurred in Allentown, Lehigh County, Pennsylvania, which is located within this judicial district.

BACKGROUND
Complaint

On June 4, 2008 plaintiffs Kathleen Kuhns, Joyce Mazalewski and Kathleen Teay filed a four-count Complaint for Injunctive Relief and Damages against the City of Allentown; Chief of Police Roger MacLean (both individually and in his official capacity); Allentown Women's Center, Inc.; and Jennifer Boulanger, the Center Executive Director.

In this federal civil rights action, three anti-abortion protesters claim that a private reproductive health care provider and its Executive Director violated the protesters' federal First Amendment and Equal Protection rights, as well as rights secured by the Pennsylvania Constitution and state law.

The complaint also names as defendants the City of Allentown and its Chief of Police. Plaintiffs allege that these municipal defendants acted jointly with the Women's Center and its Director to deprive plaintiffs of their rights, including their constitutional free speech, religious freedom and equal protection rights, and to create a public nuisance.

The complaint alleges that the defendants are permitting clinic escorts to accompany Women's Center patients through the crosswalk on Keats Street adjoining the Center, using three strategies to shield them from direct contact with the protesters.

Specifically the complaint alleges that the Women's Center (presumably through its employees, agents or volunteers), including Director Boulanger: (1) hold two six-foot by fifteen-foot opaque plastic tarps seven feet apart within the crosswalk, which separates patients from protesters and blocks Keats Street from the exit of the parking lot used by the Center to the entrance of the Center; (2) form a "human shield" around patients to prevent protesters from having access to them in a public place; and (3) shout to create "vocal noise" for the purpose of drowning out the protesters' message.2

Summary of Claims

Count I of the complaint is brought under 42 U.S.C. § 1983 and alleges violation of plaintiffs' rights under the First and Fourteenth Amendments to the United States Constitution. More specifically, Count I alleges that defendants City and Police Chief have acted jointly with defendants Center and its Director under color of state law to deprive plaintiffs of their rights under the First Amendment to freedom of speech and religion.

Count II is also brought under § 1983 and alleges violations under Article I, §§ 3 and 7 of the Pennsylvania Constitution. More specifically, Count II alleges that defendants City and Police Chief have acted jointly with defendants Center and its Director under color of state law to deprive plaintiffs of their rights to religious freedom under § 3 and to freedom of expression under § 7.

Count III is brought under § 1983 and alleges that defendants' conduct violates plaintiffs' rights to equal protection of the law under the Fourteenth Amendment to the United States Constitution and under the Pennsylvania Constitution and the state statutes prohibiting obstruction of roadways.

Finally, in Count IV plaintiffs allege a private action for public nuisance under Pennsylvania state law. More specifically, Count IV alleges that the defendants acting jointly under color of state law have engaged in conduct that unreasonably interferes with Constitutional and civil rights of plaintiffs which are common to the general public.

Plaintiffs allege that these deprivations of their rights have caused them mental suffering, emotional distress and other harm warranting compensatory damages. In their Prayer for Relief plaintiffs seek compensatory damages; injunctive relief against Director Boulanger and the Allentown Women's Center, and its agents, servants and employees under Counts I-III, enjoining and restraining them from further interference with plaintiffs' rights, and under Count IV, enjoining and restraining them from continuing the conduct constituting a public nuisance; reasonable fees and costs pursuant to 42 U.S.C. § 1988 as to Counts I-III; and such other relief as the court deems just and proper.

Previous Litigation

In ruling upon a motion to dismiss, the court may consider "any matters incorporated by reference or integral to the claim, items subject to judicial notice, matters of public record, orders, [and] items appearing in the record of the case." Buck v. Hampton Township School District, 452 F.3d 256, 260 (3d Cir.2006).

This litigation follows two previous federal civil rights lawsuits by anti-abortion protesters against the City of Allentown and Allentown Police Department stemming from confrontational protests at and around the entrance to the Women's Center. See Arietta v. City of Allentown, civil action number 04-cv-00226, 2004 WL 1774623 (E.D.Pa.) ("Arietta I"); Arietta v. City of Allentown, civil action number 04-cv-05306, 2007 WL 2071671 (E.D.Pa.) ("Arietta II").

Two of the plaintiffs in the within case, Kathleen R. Kuhns and Kathleen Teay, were also plaintiffs in the previous litigation. Ms. Kuhns was a plaintiff in both Arietta I and Arietta II, and Ms. Teay was a plaintiff in Arietta II. The City of Allentown and officials of the Allentown Police Department were named as defendants in both previous cases.

Both plaintiffs Kuhns and Teay signed a comprehensive settlement agreement, entitled "Consent Judgment", which this court entered as a final judgment in Arietta II.3 This Consent Judgment created detailed rules governing the conduct of police and protesters at protests held at and around the entrance to the Women's Center.

Specifically, the Consent Judgment created a seven-foot-wide crosswalk spanning Keats Street. The crosswalk connects the Women's Center's parking lot and the entrance to the Center. In addition, the Consent Judgment created a painted walkway on Keats Street adjacent to the parking lot—a four-foot wide strip running the length of Keats Street across the street from the Women's Center, perpendicular to the seven-foot-wide crosswalk.

The Consent Judgment further provided:

2. The Plaintiffs' claims for injunctive relief are settled on the following terms:

h. Plaintiffs may stand or walk along the walkway within the crosswalk past the...

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