Marcavage v. Nat'l Park Serv., Civil Action No. 09–4594.

CourtUnited States District Courts. 3th Circuit. United States District Court (Eastern District of Pennsylvania)
Writing for the CourtBARTLE, Chief Judge.
Citation777 F.Supp.2d 858
Docket NumberCivil Action No. 09–4594.
Decision Date09 March 2011

777 F.Supp.2d 858


Civil Action No. 09–4594.

United States District Court, E.D. Pennsylvania.

March 9, 2011.

[777 F.Supp.2d 860]

C. Scott Shields, Media, PA, for Michael Marcavage.Kelly E. Heidrich, U.S. Dept. of Justice, Washington, DC, for National Park Service, et al.

BARTLE, Chief Judge.

Plaintiff Michael Marcavage (“Marcavage”) brings this action for violations of his civil rights and for battery against the National Park Service, the Department of the Interior, and National Park Service Rangers Alan Saperstein (“Saperstein”) and Ian Crane (“Crane”).1 Before the court is the motion of defendants to dismiss

[777 F.Supp.2d 861]

the amended complaint under Rule 12(b)(6) of the Federal Rules of Civil Procedure, or in the alternative for summary judgment under Rule 56.


When deciding a Rule 12(b)(6) motion to dismiss, the court must accept as true all factual allegations in the complaint and draw all inferences in the light most favorable to the plaintiff. Phillips v. Cnty. of Allegheny, 515 F.3d 224, 233 (3d Cir.2008); Umland v. PLANCO Fin. Servs., Inc., 542 F.3d 59, 64 (3d Cir.2008). We must then determine whether the pleading at issue “contain[s] sufficient factual matter, accepted as true, to ‘state a claim for relief that is plausible on its face.’ ” Ashcroft v. Iqbal ––– U.S. ––––, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). A claim must do more than raise a “ ‘mere possibility of misconduct.’ ” Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d Cir.2009) (quoting Iqbal, 129 S.Ct. at 1950). Under this standard, “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Iqbal, 129 S.Ct. at 1949. On a motion to dismiss, a court may consider an “undisputedly authentic document that a defendant attaches as an exhibit to a motion to dismiss if the plaintiff's claims are based on the document.” Pension Benefit Guar. Corp. v. White Consol. Indus., 998 F.2d 1192, 1196 (3d Cir.1993). A court may also consider matters of public record. Id.

To the extent that the defendants have filed a motion to dismiss Marcavage's claims on the grounds of sovereign immunity, failure to exhaust administrative remedies, and mootness, the motion for dismissal is properly one under Rule 12(b)(1) of the Federal Rules of Civil Procedure for lack of subject matter jurisdiction, not under Rule 12(b)(6). See, e.g., Lightfoot v. United States, 564 F.3d 625, 626–27 (3d Cir.2009); Weiss v. Regal Collections, 385 F.3d 337, 340 (3d Cir.2004). When reviewing a facial challenge to subject matter jurisdiction under Rule 12(b)(1), the court accepts the plaintiff's allegations as correct and draws inferences in the plaintiff's favor. Turicentro, S.A. v. Am. Airlines, Inc., 303 F.3d 293, 300 & n. 4 (3d Cir.2002); Mortensen v. First Fed. Sav. & Loan Ass'n, 549 F.2d 884, 891 (3d Cir.1977). A facial challenge to subject matter jurisdiction is one in which a defendant argues that “the allegations on the face of the complaint, taken as true,” are insufficient to invoke the court's jurisdiction. Turicentro, 303 F.3d at 300.

Since we rely on nothing in the record beyond what we may consider in deciding a motion under Rule 12(b)(6) and Rule 12(b)(1), it is not appropriate to address the defendants' alternative motion for summary judgment. See Fed.R.Civ.P. 56; Pension Benefit Guar. Corp., 998 F.2d at 1196.


The following facts are viewed in the light most favorable to the plaintiff. On October 6, 2007, Marcavage, using a bullhorn, led an anti-abortion rally of about twenty people carrying graphic signs. He positioned himself and his followers on a sidewalk on the east side of Sixth Street in Philadelphia between Chestnut and Market Streets, in front of the entrance to the Liberty Bell Center at Independence National Historical Park. In addition to the individuals led by Marcavage, there were also present on or about the sidewalk tourists, horse and carriage operators, and a group participating in a walk for the Susan G. Komen Foundation, a national organization dedicated to eliminating breast cancer.

Ranger Saperstein approached Marcavage at approximately 11:45 a.m. and informed

[777 F.Supp.2d 862]

him that he could not stand on that section of the sidewalk because it was not designated as a First Amendment area under Park regulations. Saperstein also expressed concern that Marcavage was upsetting visitors to the Park because of the content of his speech and potentially interfering with traffic flow on the sidewalk. He issued Marcavage an oral permit to continue his rally in the grassy area on the opposite side of the Liberty Bell Center, which was open for First Amendment activity under Park regulations. Saperstein contacted Crane, his supervisor, by cellular telephone, and Crane by phone also encouraged Marcavage to move to a different area of the Park. Marcavage refused to comply.

After Marcavage refused several requests to move, Saperstein and other rangers escorted him off the Sixth Street sidewalk several hours later at approximately 2:05 p.m. Saperstein held Marcavage's hands behind his back. He then issued Marcavage a citation for “violating a term or condition of a permit” under 36 C.F.R. § 1.6(g)(2). Later, Marcavage received a citation through the mail for “interfering with agency functions” under 36 C.F.R. § 2.32. Subsequently, a United States Magistrate Judge convicted him of these two misdemeanors. See United States v. Marcavage, No. 08–0511, 2009 WL 2170099, at *1 (E.D.Pa. June 17, 2009) (“ Marcavage I ”). Applying a clearly erroneous standard on factual matters and plenary review on legal matters, a United States District Judge affirmed the convictions. See United States v. Marcavage, No. 08–0511, 2009 WL 2170094, at *1 (E.D.Pa. July 16, 2009) (“ Marcavage II ”). However, on further appeal, the Court of Appeals reversed the convictions. United States v. Marcavage, 609 F.3d 264 (3d Cir.2010) (“ Marcavage III ”). While the court held that there was insufficient evidence to support Marcavage's conviction for “violating a term or condition of a permit,” it vacated his conviction for “interfering with agency functions” on the ground that it was invalid under the First Amendment.

In Count I of the amended complaint, Marcavage alleges that defendants violated his right of freedom of expression under the First Amendment by “cutting off [his] speech, ordering him to move after issuing a verbal permit, while allowing others to use the same area to engage in their expressive and commercial activities, and then forcibly arresting and removing” him. Count II asserts a claim for violation of the Equal Protection Clause.2 In Counts III and IV, Marcavage requests declaratory and injunctive relief. Finally, in Count V, Marcavage brings a claim for violation of his Fourth Amendment rights stemming from his allegedly illegal arrest.3


Pursuant to Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, a plaintiff may bring an action for damages against federal officials such as Saperstein and Crane in their individual

[777 F.Supp.2d 863]

capacities for violations of constitutional rights. 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971). However, a Bivens action cannot be pursued against the United States government and its agencies absent a waiver. Federal Deposit Ins. Corp. v. Meyer, 510 U.S. 471, 475, 114 S.Ct. 996, 127 L.Ed.2d 308 (1994). Because no waiver has occurred here, the complaint will be dismissed for lack of subject matter jurisdiction under Rule 12(b)(1) of the Federal Rules of Civil Procedure as to the National Park Service and the Department of the Interior to the extent that Marcavage seeks damages and not injunctive relief. See, e.g., Matsko v. United States, 372 F.3d 556, 558 (3d Cir.2004).


We turn now to Marcavage's claims against Saperstein and Crane for violations of his First Amendment rights. Under the First Amendment, “Congress shall make no law ... abridging the freedom of speech ... or the right of the people peaceably to assemble.” U.S. Const. amend. I.

Defendants assert that Bivens should not be extended to violations of the First Amendment. The Supreme Court has not specifically decided this issue. In Ashcroft v. Iqbal, an individual detained pre-trial as a person of “high interest” following the terrorist attacks of September 11, 2001 brought a Bivens action against federal officials, in which he claimed that his First Amendment right to the free exercise of religion was violated. ––– U.S. ––––, 129 S.Ct. 1937, 1942–44, 173 L.Ed.2d 868 (2009). The Court assumed, without deciding, that violations of the First Amendment were actionable under Bivens. Id. at 1947–48. It also noted that “[b]ecause implied causes of action are disfavored, the Court has been reluctant to extend Bivens liability ‘to any new context or new category of defendants.’ ” Id. at 1948 (citing Corr. Servs. Corp. v. Malesko, 534 U.S. 61, 68, 122 S.Ct. 515, 151 L.Ed.2d 456 (2001)).

In Paton v. La Prade, our Court of Appeals considered this same issue. 524 F.2d 862, 869–70 (3d Cir.1975). There, a high school student sought damages after the Federal Bureau of Investigation conducted an investigation into her correspondence with the Socialist Workers Party. Id. at 865–66. The court explained that since it had already recognized a claim for violation of the First Amendment right to free speech under 42 U.S.C. § 1983 against state officials, there was “no reason to allow federal officials to act with impunity in this context.” Id. at 870. The court held that the extension of Bivens to redress violations of the First Amendment was “both justifiable and logical.” Id. Until the Supreme Court explicitly declares otherwise, we are bound by the decision of our Court of Appeals. See generally Poulis v. State Farm Fire & Cas. C...

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