Ottinger v. Chester Twp.

• Decision Date: 23 February 2015
• Docket Number: CIVIL ACTION NO. 14-4432
• Court: U.S. District Court — Eastern District of Pennsylvania
• Parties: DAVID OTTINGER v. CHESTER TOWNSHIP, et al.

DAVID OTTINGER v. CHESTER TOWNSHIP, et al.

CIVIL ACTION NO. 14-4432

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA

February 23, 2015

MEMORANDUM

L. Felipe Restrepo, J.

Defendants Chester Township, Kenneth Coalson, and Stanley Kester move to dismiss Plaintiff David Ottinger's Amended Complaint pursuant to Rule 12(b)(6) for failure to state a claim upon which relief can be granted.¹ Defendant Joseph Fitzgerald separately moved to dismiss the Amended Complaint pursuant to Rule 12(b)(6).² Upon consideration of the parties' moving papers, and for the reasons that follow, the Defendants' motions to dismiss will be granted and the Amended Complaint will be dismissed without prejudice.

I. BACKGROUND

Plaintiff David Ottinger is a resident of the Borough of Brookhaven, located in Delaware County, Pennsylvania. Am. Compl. ¶ 1. Ottinger addressed the Chester Township Council ("Council"), the legislative body for neighboring Chester Township, on several occasions to express his views about the Chester Township Police. Id. ¶ 12. Ottinger often spoke about an incident that occurred several years ago, during which he alleges Chester Township policeofficers entered his home after his wife's death, leading to the theft of $6,500 from his home. Am. Compl. ¶ 15.

On multiple occasions, the Delaware County Times reported on Ottinger's remarks at the Council meetings, as well as responses to Ottinger's remarks. See, e.g., Am. Compl. Exs. A-C. At the September 5, 2013, Council meeting, Ottinger allegedly stated, among other things, that "[y]ou have bad police . . . You have criminals with badges. You need a good, professional police force, and you will not get that as long as Council promotes illegal behavior." Am. Compl. ¶ 15. In response, Stanley Kester, President of the Council, allegedly told Ottinger the following: "I've told you before, get an attorney . . . If you think it's a legal matter, get an attorney and contact our solicitor." Am. Compl. ¶ 16; Am. Compl. Ex. C. Ottinger interprets this statement to mean that he can only speak to Council privately, and via an attorney. Am. Compl. ¶¶ 17-20, 22, 24.

On or about October 3, 2013, Joseph Fitzgerald, President of the Delaware County Fraternal Order of Police appeared at a Council meeting to address several statements made about the Chester Township Police Department at the September 5, 2013, Council meeting. Am Compl. ¶ 15; Am. Compl. Ex. A. Fitzgerald responded to criticisms levied by then Council Vice President Nathaniel Ellis, and also responded to comments made by Ottinger. Id. Fitzgerald allegedly stated the following: "If I were here, I would have been up screaming . . . If there are going to be attacks on the police department by residents or council, we are going to need a much bigger room when the buses start coming in." Id. Regarding Ottinger specifically, Fitzgerald allegedly stated the following: "The resident who made those comments, if he's here, he's already being looked into. I've contacted an attorney to look into civil litigation. He may have a problem and there is an investigation going on." Id. Ottinger interprets this statement tomean that "he has been placed under investigation which is either participated in or sponsored by [Council] and which is retaliation for his expression of criticism of the [Chester Township] police." Am. Compl. ¶ 21. Following the October meeting, Chester Township Police Chief Kenneth Coalson stated that he was grateful for the support he received from his department and residents, and that he appreciated Fitzgerald speaking out publicly on his behalf. Am Compl. ¶ 15; Am. Compl. Ex. A.

Defendants moved to dismiss Plaintiff's Amended Complaint in its entirety pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. The Amended Complaint originally set forth two counts against Defendants: Count I - retaliation for exercise of his First and Fourteenth Amendment rights, in violation of 42 U.S.C. § 1983; and, Count II - unreasonable restraint on the exercise of First Amendment rights in violation of 42 U.S.C. § 1983. Plaintiff has since withdrawn his assertion that the Fourteenth Amendment applies to Count I, and has withdrawn Count II entirely. Pl.'s Br. in Opp'n 1 (ECF No. 14).

II. LEGAL STANDARD

"To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678, (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). This "requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Twombly, 550 U.S. at 555. While Rule 12(b)(6) does not permit dismissal of a well-pleaded complaint simply because "it strikes a savvy judge that actual proof of those facts is improbable," the "[f]actual allegations must be enough to raise a right to relief above the speculative level." Phillips v. Cnty. of Allegheny, 515 F.3d 224, 234 (3d Cir. 2008) (quoting Twombly, 550 U.S. at 555). Thus, a plaintiff must present "enough facts to raise areasonable expectation that discovery will reveal evidence of the necessary element[s]" of a cause of action. Id. However, "the Court need not accept as true 'unsupported conclusions and unwarranted inferences,' Doug Grant, Inc. v. Greate Bay Casino Corp., 232 F.3d 173, 183-84 (3d Cir. 2000), or the plaintiff's 'bald assertions' or 'legal conclusions,' Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 906 (3d Cir. 1997)." Kofsky v. Unum Life Ins. Co. of Am., 2014 WL 4375725, at *2 (E.D. Pa. Sept. 2, 2014).

When considering a motion to dismiss, the court looks to the facts alleged in the complaint and its attachments. Jordan v. Fox, Rothschild, O'Brien & Frankel, 20 F.3d 1250, 1261 (3d Cir. 1994). To determine whether dismissal is appropriate, the court uses a two-part analysis. See Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d. Cir. 2009). First, the court separates the factual and legal elements of the claim and accepts as true all of the complaint's well-pleaded facts. Id. at 210-11. Next, the court determines whether the complaint alleges facts sufficient to show that the plaintiff has a "plausible claim for relief." Id. at 211 (quoting Iqbal, 556 U.S. at 679). In this two-part analysis, "[d]etermining whether a complaint states a plausible claim is context-specific, requiring the reviewing court to draw on its experience and common sense." Iqbal, 556 U.S. at 663-64 (citing Twombly, 550 U.S. at 556).

III. DISCUSSION

To plead a First Amendment retaliation claim pursuant to Section 1983, 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. Thomas v. Independence Twp., 463 F.3d 285, 296 (3d Cir. 2006). "[T]he key question in determining whether a cognizable First Amendment claim has been stated is whether 'the alleged retaliatory conduct was sufficient todeter a person of ordinary firmness from exercising his First Amendment rights.'" McKee v. Hart, 436 F.3d 165, 170 (3d Cir. 2006) (quoting Suppan v. Dadonna, 203 F.3d 228, 235 (3d Cir. 2000)). "'Where a public officials 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 [one's] First Amendment rights, even if defamatory.'" Municipal Revenue Services, Inc. v. McBlain, 347 F. App'x 817, 825 (3d Cir. 2009) (quoting Suarez Corp. Industries v. McGraw, 202 F.3d 676, 687 (4th Cir. 2000)).

Defendants do no contest that Plaintiff sufficiently alleged that he engaged in constitutionally protected conduct by addressing the Council on numerous occasions. Rather, Defendants challenge the sufficiency of Plaintiff's allegations as to the second element, that there was retaliatory action sufficient to deter a person of ordinary firmness from exercising his constitutional rights.

A. Defendant Kester's Comment

Plaintiff alleges that the following statement by Defendant Kester constitutes unlawful retaliation against Plaintiff for exercising his First Amendment rights: "I've told you before, get an attorney . . . If you think it's a legal matter, get an attorney and contact our solicitor." Am. Compl. ¶ 16; Am. Compl. Ex. C. Plaintiff apparently interpreted Defendant Kester's words to mean "[t]hat is to say do not speak to council hire an attorney." Am. Compl. ¶ 16. Further examination of the Amended Complaint reveals that Plaintiff didn't view Defendant Kester's statement as threatening an absolute bar to communicating with the Council. Rather, Plaintiff believes that "[i]n retaliation for his speech, [Chester Township] limited his right to speak by requiring that he do so through counsel who would speak privately and directly to the [ChesterTownship] solicitor thereby precluding Mr. Ottinger's right to speak publicly." Am. Compl. ¶ 36. According to Plaintiff, this policy was solidified when no other member of Council spoke up to rebuke Kester's comments. Id. ¶ 17.

As a preliminary matter, while Plaintiff interpreted Defendant Kester's words to mean "do not speak to council," and also interpreted the ensuing silence to mean that Defendant Kester's represented an official policy of the township, the Court need not accept unsupported conclusions or unwarranted inferences. See Doug Grant, 232 F.3d at 183-84. Indeed, "[c]ourts have an obligation in matters before them to view the complaint as a whole and to base rulings not upon the presence of mere words but, rather, upon the presence of a factual situation which is or is not justiciable. We do draw on the allegations of the complaint, but in a realistic, rather than a slavish, manner." City of Pittsburgh v....