Zapach v. Dismuke

• Decision Date: 26 March 2001
• Docket Number: No. CIV. A. 00-CV-3972.,CIV. A. 00-CV-3972.
• Citation: 134 F.Supp.2d 682
• Parties: Theodore ZAPACH, Plaintiff, v. Thomas DISMUKE, Defendant.
• Court: U.S. District Court — Eastern District of Pennsylvania

134 F.Supp.2d 682

Theodore ZAPACH, Plaintiff, v. Thomas DISMUKE, Defendant.

No. CIV. A. 00-CV-3972.

United States District Court, E.D. Pennsylvania.

March 26, 2001.

COPYRIGHT MATERIAL OMITTED

Richard J. Orloski, Allentown, PA, for plaintiff.

Robert G. Hanna, Jr., Harrisburg, PA, for defendant.

OPINION AND ORDER

VAN ANTWERPEN, District Judge.

I. INTRODUCTION

Plaintiff Theodore Zapach has brought this action against Defendant Thomas Dismuke under 42 U.S.C. § 1983 for an alleged First Amendment violation, and for state law claims of assault and battery arising from the same course of events. We have jurisdiction pursuant to 28 U.S.C. §§ 1331, 1343, and 1367. Before the Court is Defendant's Motion for Summary Judgment on all claims. For the reasons explained herein, we hold that Defendant violated Plaintiff's right to free speech as guaranteed by the First Amendment to the United States Constitution, but Defendant is entitled to both qualified immunity and absolute quasi-judicial immunity for such violation. We decline to exercise supplemental jurisdiction over the state-law claims.¹

II. STANDARD OF REVIEW

The court shall render summary judgment only "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). An issue is "genuine" only if there is a sufficient evidentiary basis on which a reasonable jury could find for the non-moving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) ("Anderson I"). A factual dispute is "material" only if it might affect the outcome of the suit under governing law. See id. at 248, 106 S.Ct. 2505. All inferences must be drawn and all doubts resolved in favor of the non-moving party. See United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 8 L.Ed.2d 176 (1962); Gans v. Mundy, 762 F.2d 338, 341 (3d Cir.1985).

On motion for summary judgment, the moving party bears the initial burden of identifying those portions of the record that it believes demonstrates the absence of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). To defeat summary judgment, the non-moving party must respond with facts of record that contradict the facts identified by the movant and may not rest on mere denials. See id. at 321 n. 3, 106 S.Ct. 2548 (quoting Fed.R.Civ.P. 56(e)); see also First Nat'l Bank of Pa. v. Lincoln Nat'l Life Ins. Co., 824 F.2d 277, 282 (3d Cir.1987). The non-moving party must demonstrate the existence of evidence that would support a jury finding in its favor. See Anderson I, 477 U.S. at 249, 106 S.Ct. 2505.

III. FACTUAL BACKGROUND

On September 8, 1998, Plaintiff attended a publicly announced meeting of the Lower Milford Township Zoning Hearing Board that had been called to hear an appeal, a request for a special exception to a zoning ordinance by the developer of a proposed mobile home park. (Zapach Dep. 11.) The notice of the meeting and procedural statements made by the Defendant at the beginning of the meeting in his capacity as Chairperson of the Board indicated that members of the public would be heard on whether the special exception should be granted. (Def.Supp.Mem.Exh. B; Exh. C, Hearing Tr. 4-7.) More than two hundred members of the public attended the meeting, and more than twenty-five registered to testify. (Def.Exh. G.) Due to the expected large attendance, the meeting was held at a fire hall within the township instead of the usual location at the township's municipal building. The general consensus of the community, and all those testifying, including the Plaintiff, was against the allowing the land, then used as a rifle range, to be used for a mobile home park. (Dismuke Dep. at 21; Def.Exh. G.)

The Zoning Hearing Board has the power to interpret and apply zoning ordinances by hearing appeals from the actions of a zoning officer and hearing requests for special exceptions. The Board does not have the power to enact zoning ordinances; the Township Supervisors have that power. (Dismuke Dep. 46-47; Zapach Dep. 10, 13, 18; Def.Supp.Mem. 3-4).

After the applicant made his argument, the public commented on the appeal. Persons wishing to make a statement were required to register during the meeting, and then be sworn before testifying. Persons who merely wished to ask a question, however, were not sworn. Plaintiff was near the end of the list of those who had requested to speak, and when he was called, he gave his name and was sworn. (Dismuke Dep.Exh. H, Hearing Tr. 93.)

Plaintiff began his remarks by explaining his opposition to the mobile home park. (Id., Tr. 94.) Eventually he asked Defendant for permission to read a prepared text. (Id., Tr. 96.) Defendant inquired as to how much time would be needed, and when Plaintiff said that it was only a page and gave a copy to Defendant, Defendant told him to proceed. Plaintiff started by saying that the speech pertained to the curative amendment process, which the applicant would be entitled to file, and whether the applicant could win a curative amendment. (Id.) This was not the matter before the Zoning Hearing Board, however, and the Board had no power regarding the curative amendment process. Defendant allowed Plaintiff to begin his remarks on this subject, even though they were not relevant to the matter at hand.

Defendant allowed Plaintiff to make remarks on this subject until he mentioned the names of Jasper and Joan Dreibelbis, a former and current township Supervisor, respectively. (Id., Tr. 98.) When Plaintiff mentioned these names, Defendant told him not to use names and directed that the sentence be stricken from the record. (Id.) Plaintiff objected, arguing that the actions of these Supervisors pertained to why some property owners would seek a curative amendment. Defendant told Plaintiff to stop speaking, but Plaintiff continued. (Id.) Defendant arose from his seat, approached Plaintiff, put his hand on Plaintiff's arm, tried to grab the paper on which the speech was printed from Plaintiff's hand, and guided him away from the microphone as Plaintiff attempted to continue to read his prepared text. (Dismuke Dep. at 31-34; Def.Exh. E.) Plaintiff also alleges that Defendant pushed Plaintiff from behind by Plaintiff's shoulders back to Plaintiff's seat. (Zapach Dep. at 35-36.)

IV. FIRST AMENDMENT CLAIM UNDER 42 U.S.C. § 1983

A. Analytical Framework

Our analysis begins with a discussion of the requirements for establishing a constitutional claim under 42 U.S.C. § 1983. Section 1983 reads, in pertinent part, as follows:

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.

Section 1983 does not create substantive rights; instead "it provides only remedies for deprivations of rights established elsewhere in the Constitution or federal laws." Kneipp v. Tedder, 95 F.3d 1199, 1204 (3d Cir.1996). A plaintiff seeking to establish a claim under Section 1983 "must demonstrate a violation of a right secured by the Constitution and the laws of the United States [and] that the alleged deprivation was committed by a person acting under color of state law." Id. (quoting Mark v. Borough of Hatboro, 51 F.3d 1137, 1141 (3d Cir.1995)). If the Plaintiff has made out a prima facie case for the deprivation of a federal right under color of state law,² we must then determine whether the Defendant is entitled to qualified immunity or official immunity for his actions.

B. Discussion

1. First Amendment

Whether an activity is protected by the First Amendment is a question of law. See Watters v. City of Philadelphia, 55 F.3d 886, 892 (3d Cir.1995). The First Amendment provides in part that "Congress shall make no law ... abridging the freedom of speech...." U.S. Const. amend. I. The freedom of speech is not absolute, however: a violation occurs only when the restricted speech is constitutionally protected and when the government's justification for the restriction is insufficient. See Frisby v. Schultz, 487 U.S. 474, 479, 108 S.Ct. 2495, 101 L.Ed.2d 420 (1988). The Supreme Court has articulated a three-step, forum-based test for determining whether a state actor violated a plaintiff's First Amendment right to free speech. See Cornelius v. NAACP Legal Defense & Educational Fund, 473 U.S. 788, 797, 105 S.Ct. 3439, 87 L.Ed.2d 567 (1985). We must determine (1) whether plaintiff's speech is protected by the First Amendment; (2) the nature of the forum: public, designated or limited public, or nonpublic; and (3) whether the defendant's justifications for limiting the plaintiff's speech satisfy the requisite standard.³ See id.

The First Amendment's protection of free speech, made applicable to the states through the Fourteenth Amendment, extends to a broad range of speech and expressive conduct. Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, 515 U.S. 557, 115 S.Ct. 2338, 132 L.Ed.2d 487 (1995). Speech on public issues and political matters lies at the heart of protected speech. See, e.g., R.A.V. v. City of St. Paul, 505 U.S. 377, 422, 112 S.Ct. 2538, 120 L.Ed.2d 305 (1992) ("Our First Amendment decisions have created a rough hierarchy in the constitutional protection of speech. Core political speech occupies the highest, most protected position....") (Stevens, White and Blackmun, JJ. concurring); Burson v. Freeman, 504 U.S. 191, 196, 112 S.Ct. 1846, 119 L.Ed.2d 5 (1992) ("There is...