Marcavage v. City of Philadelphia

• Decision Date: 31 March 2011
• Docket Number: Civil Action No. 09–2477.
• Parties: Michael MARCAVAGE, Plaintiff,v.CITY OF PHILADELPHIA, et al., Defendants.
• Court: U.S. District Court — Eastern District of Pennsylvania

778 F.Supp.2d 556

Michael MARCAVAGE, Plaintiff,

v.CITY OF PHILADELPHIA, et al., Defendants.

Civil Action No. 09–2477.

United States District Court, E.D. Pennsylvania.

March 31, 2011.

L. Theodore Hoppe, Jr., Hoppe & Martin LLP, Kennett Square, PA, for Plaintiff.Genelle Franklin, City of Philadelphia Law Dept, Philadelphia, PA, for Defendants.

MEMORANDUM

EDUARDO C. ROBRENO, District Judge.I. INTRODUCTION

Plaintiff Michael Marcavage (“Plaintiff” or “Marcavage”) initiated this § 1983 action against the City of Philadelphia (“the City”) and individual Defendants William Fisher (“Captain Fisher”), a captain in the Philadelphia Police Department, Craig Smith (“Sergeant Smith”), a sergeant in the Philadelphia Police Department, Officer Stuski, Officer Brown, Officer Wiggins, and Sergeant DeMalto (collectively, “Defendants”).

Defendants bring a Motion for Summary Judgment as to all Counts of Plaintiff's Amended Complaint and Plaintiff brings a Motion for Partial Summary Judgment as to Plaintiff's First Amendment claims. For the reasons set forth below, the Court will grant Defendants' Motion for Summary Judgment on all Counts and deny Plaintiff's Motion for Partial Summary Judgment.

II. BACKGROUND

On June 2, 2009, Plaintiff initiated this § 1983 action in this Court ¹ alleging that Defendants violated his First, Fourth, and Fourteenth Amendment rights by interfering with his “open-air” preaching of evangelical Christian principles on the streets of Philadelphia.² Additionally, Plaintiff alleges a violation of Pennsylvania's Religious Freedom Protection Act.³ 71 Pa. Stat. Ann. § 2401 et seq. Plaintiff seeks declaratory judgment, permanent injunctive relief, nominal damages, compensatory damages, and punitive damages. (See Pl.'s Compl. ¶ 6.)

On March 22, 2010, Defendants filed their answer to Plaintiff's Amended Complaint. Defendants denied Plaintiff's allegations and raised several affirmative defenses, including that Plaintiff has failed to state a claim upon which relief may be granted and that Defendants are entitled to qualified immunity.

On May 3, 2010, Plaintiff filed a Motion for Partial Summary Judgment as to his First Amendment claims. On June 11, 2010, Defendants filed a Motion for Summary Judgment as to all Counts of Plaintiff's Amended Complaint. Both summary judgment motions are currently before the Court.

III. DISCUSSION

Defendants bring a Motion for Summary Judgment, arguing that Plaintiff's claims fail as a matter of law as Plaintiff's claims cannot survive summary judgment because (1) Plaintiff failed to establish that, through custom, policy, or practice, the City of Philadelphia exhibited “deliberate indifference” to his constitutional rights; (2) Plaintiff failed to demonstrate that the police officers, individually, violated his civil rights by separating him from groups with opposing views; and (3) individual defendants are entitled to qualified immunity. (See Defs.' Mot. Summ. J.)

The Court will address the relevant legal standards. Next, taking the facts in the light most favorable to the Plaintiff, the Court will address each of Plaintiff's claims.

A. Summary Judgment Standard Under Rule 56

Summary judgment is appropriate if there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a). The “ ‘mere existence’ of disputed facts will not result in denial of a motion for summary judgment; rather[,] there must be ‘a genuine issue of material fact.’ ” Am. Eagle Outfitters v. Lyle & Scott Ltd., 584 F.3d 575, 581 (3d Cir.2009) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247–248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)). A fact is “material” if its existence or non-existence would affect the outcome of the suit under governing law. Anderson, 477 U.S. at 248, 106 S.Ct. 2505. An issue of fact is “genuine” when there is sufficient evidence from which a reasonable jury could find in favor of the non-moving party regarding the existence of that fact. Id. at 248–49, 106 S.Ct. 2505. “In considering the evidence, the court should draw all reasonable inferences against the moving party.” El v. Se. Pa. Transp. Auth., 479 F.3d 232, 238 (3d Cir.2007).

In undertaking this analysis, the court views the facts in the light most favorable to the nonmoving party. “After making all reasonable inferences in the nonmoving party's favor, there is a genuine issue of material fact if a reasonable jury could find for the nonmoving party.” Pignataro v. Port Auth. of N.Y. & N.J., 593 F.3d 265, 268 (3d Cir.2010) (citing Reliance Ins. Co. v. Moessner, 121 F.3d 895, 900 (3d Cir.1997)).

“Although the initial burden is on the summary judgment movant to show the absence of a genuine issue of material fact, ‘the burden on the moving party may be discharged by showing-that is, pointing out to the district court-that there is an absence of evidence to support the nonmoving party's case’ when the nonmoving party bears the ultimate burden of proof.” Conoshenti v. Pub. Serv. Elec. & Gas Co., 364 F.3d 135, 140 (3d Cir.2004) (quoting Singletary v. Pa. Dep't of Corr., 266 F.3d 186, 192 n. 2 (3d Cir.2001)). Once the moving party has discharged its burden, the nonmoving party “may not rely merely on allegations or denials in its own pleading; rather, its response must—by affidavits or as otherwise provided in [Rule 56]—set out specific facts showing a genuine issue for trial.” Fed.R.Civ.P. 56(e)(2).

B. Section 1983 Claims

Section 1983 of Title 42 of the United States Code provides a cause of action for an individual whose constitutional or federal rights are violated by those acting under color of state law.⁴ See generally Gonzaga Univ. v. Doe, 536 U.S. 273, 284–85, 122 S.Ct. 2268, 153 L.Ed.2d 309 (2002). The threshold inquiry in a § 1983 suit is whether the plaintiff has been deprived of a right “secured by the Constitution and laws” of the United States. Baker v. McCollan, 443 U.S. 137, 140, 99 S.Ct. 2689, 61 L.Ed.2d 433 (1979). Absent a violation of a right secured by the Constitution or the laws of the United States, there can be no cause of action under § 1983. Reichley v. Pa. Dep't. of Agric., 427 F.3d 236, 244 (3d Cir.2005) (citing West v. Atkins, 487 U.S. 42, 48, 108 S.Ct. 2250, 101 L.Ed.2d 40 (1988)).

C. First Amendment Claims (Counts I and III)

In Count I, Plaintiff alleges a violation of his right to free speech. In Count III, Plaintiff alleges a violation of his right to free exercise of religion. Plaintiff claims that by restricting his movements on public sidewalks at gay pride events, Defendants are employing a policy, custom, or practice, that violated his First Amendment right to free speech and free exercise of religion.

Defendants, in opposition, contend that Plaintiff fails to establish a violation of his First Amendment rights because (a) neither Captain Fisher nor Sergeant Smith participated in the November 15, 2008 event; (b) the ability to voice his message to Gay Pride Event attendees was not restricted where (i) Defendants' actions were content neutral, (ii) Plaintiff's relocations were a “narrowly tailored” means of ensuring public order and safety, (iii) Plaintiff had adequate channels of communication at the site of his relocation; (c) Plaintiff's complaint alleges the same facts as those presented (and dismissed) in Startzell v. City of Philadelphia; (d) Defendants were permitted to remove counter-protesters from the march route on Mary 3, 2009; (e) Plaintiff failed to establish that Defendants denied him of equal protection; and (f) individual Defendants are entitled to qualified immunity. ( See Defs.' Opp'n to Pl.'s Mot. Summ. J.) As such, Defendants argue that their Motion for Summary Judgment should be granted.

Plaintiff alleges that Defendants violated his protected First Amendment rights at the following four events ⁵: (1) June 10, 2007 PrideFest ⁶; (2) June 8, 2008 PrideFest ⁷; (3) November 15, 2008 Proposition 8 Demonstration ⁸; and (4) May 3, 2009 Equality Forum. ⁹

All four incidents, although slightly different in fact, followed the same pattern. Marcavage and his group's message was aimed at gay pride events where they condemned homosexuality and encouraged participants of the events to abandon homosexual behavior. In all instances, Marcavage and his group preached to a crowd that reacts strongly to his message. These reactions include: shouting at, debating with, trying to surround, and getting physically close to Marcavage and members of his group. Civil Affairs officers or Captain Fisher separate Marcavage and his group from the crowd despite Marcavage's protestation. From their location, Marcavage and his group are allowed to preach to the crowd with amplified sound, speak with participants passing by, hand out leaflets, and carry large signs.¹⁰

To determine whether First Amendment free speech rights have been violated, the Supreme Court has espoused a three pronged analysis. First, whether the speech is “protected by the First Amendment;” second, determining “the nature of the forum;” and third, whether the government's “justifications for exclusion from the relevant forum satisfy the requisite standard.” Cornelius v. NAACP Legal Defense and Educ. Fund, Inc., 473 U.S. 788, 797, 105 S.Ct. 3439, 87 L.Ed.2d 567 (1985); Startzell v. City of Philadelphia, 533 F.3d 183, 192 (3d Cir.2008). “The burden is on the City to demonstrate the constitutionality of its actions.” Startzell, 533 F.3d at 201.

It is not contested that open-air religious preaching is speech that is protected by the First Amendment. Also, all four incidents occurred at locations that qualify as “public forums” during gay pride events that were held on public streets, sidewalks, and parks throughout Philadelphia, Pennsylvania. Startzell, 533 F.3d at 196 (finding that streets and sidewalks are “an undisputed quintessential public forum.”). Thus, here, the real issue is the application of the third prong of the test. That is, whether the...