IN THE UNITED STATES DISTRICT COURT 


FOR THE MIDDLE DISTRICT OF PENNSYLVANIA 


DAPHNE SNOOK 


v. 

MIDD·WEST S

Plaintiff, 

CHOOL DISTRICT, et al. 

4:14·CV·948 

(JUDGE MARIANI) 

Defendants. 

MEMORANDUM OPINION 

I. INTRODUCTION AND PROCEDURAL HISTORY 

Presently before the Court is Defendant Orris Knepp, Ill's Motion to Dismiss 

Plaintiffs Amended Complaint. (Doc. 11). 

On May 16, 2014, Plaintiff, Daphne Snook, filed aComplaint in the above-captioned 

matter (Doc. 1), and subsequently filed an Amended Complaint on May 22,2014 (Doc. 4), 

naming as defendants the Midd-West School District, Victor Abate, Ronald Wilson, Ronald 

Hoffman, Shawn Sassaman, Corey Smith, Jeremy Tittle, Sherryl Wagner, Nancy Kroh, and 

Orris Knepp, III. Plaintiffs Amended Complaint sets forth seven counts: Count I, against all 

Defendants, for First Amendment Retaliation; Counts II and III, against all Defendants, for 

violations of her Procedural Due Process and Substantive Due Process rights under the 

Fourteenth Amendment; Count IV, against the Midd-West School District, for a violation of 

the Pennsylvania School Code, 24 P.S. §§ 1-101, et seq.; Count V, against the Midd-West 

School District, for breach of contract; Count VI, against all the individual defendants, for 

Case 4:14-cv-00948-RDM Document 28 Filed 03/16/15 Page 1 of 13
defamation; and Count VII, against all the individual defendants, for abuse of process. 


(Doc. 4). 

Defendant Orris Knepp, III, moved to dismiss the Amended Complaint (Doc. 11) as 

did the School District Defendants1 (Doc. 13) which the Court will address in a separate 

opinion. The parties have fully briefed the motion, and it is now ripe for decis.ion. For the 

reasons set forth below, the Court will grant Defendant Knepp's motion. 

II. FACTUAL ALLEGATIONS 

Plaintiffs Amended Complaint alleges the following facts: 

On August 8, 2011, Snook entered into awritten agreement for employment as the 

Assistant Superintendent for Curriculum, Instruction, and Technology for the Midd-West 

School District. (Am. Comp!., Doc. 4,11' 14; see also Employment Contract, Doc. 4, Ex. 1). 

The contract employed Snook in this capacity for aterm of four years, effective August 8, 

2010, and ending June 30,2014. (Doc. 4, 11' 15; Employment Contract, § 3.00). Pursuant to 

the terms of the agreement: 

The Assistant Superintendent for Curriculum, - Instruction and Technology 

shall, throughout the term of this Agreement, [is] subject to termination of 

contract for valid cause for reasons specified under Section 1080 of the 

Public School Code, including willful violation of any policies of the School 

District or any provision of this Agreement. Before her dismissal, the School 

District will provide the Assistant Superintendent for Curriculum, Instruction 

and Technology with written charges, adequate notice of a hearing and a fair 

and impartial hearing before the Board of School Directors. If the Assistant 

Superintendent for Curriculum, Instruction and Technology is found innocent 

1 The School District Defendants consist of: the Midd-West School District, Victor Abate, Ronald 

Wilson, Ronald Hoffman, Shawn Sassaman, Corey Smith, Jeremy Tittle, Sherryl Wagner, and Nancy Kroh. 

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of charges made, the Board of School Directors shall assume responsibility 

for payment of costs incurred by her in her defense. 

(Employment Contract, § 7.00(a)). 

In December 2013, Plaintiff became the temporary acting Superintendent after the 

prior Superintendent of Schools resigned supposedly because Defendants levied charges 

against him. (Doc. 4, ~ 17). 

Throughout Snook's tenure with the School District, she developed and implemented 

within the District anationwide program for individualized reading education entitled 

"Readers Workshop." (ld. at ~ 18). Plaintiff asserts that this program was "widely 

successful" in the District but that various factions within the School Board disliked it and 

worked to have it canceled, "despite the effectiveness of the program and the interest of the 

general public.!! (ld. at ~ 19). While the program was active in the District and being 

debated, Snook issued statements to the press representing that the program was crucial to 

the successful education of the students in the District. (Doc. 4, ~ 20). Snook contends 

these statements were made in her capacity as a private citizen and that certain 

Defendants2 became openly antagonistic toward her as a result of her comments. (ld.). 

On April 1,2014, Defendants issued an email to all staff members of the District 

including Snook, purportedly threatening to terminate anyone who continued to publicly 

speak in support of the Reading Workshop program. (ld. at ~ 21). Several days later, on 

April 10, 2014, Defendants suspended Plaintiff without pay. Snook alleges Defendants 

2 Snook does not identify which Defendants allegedly became antagonistic. 

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failed to provide any explanation of the charges against her or an opportunity to respond. 


(Id. at 1122). The following day, Defendants canceled ascheduled teachers planning 

course for the Reading Workshop program. (Id. at 1123). Defendants also issued public 

statements stating that Plaintiff had been suspended without pay and accusing her of 

engaging in criminal conduct by breaching the Midd-West School District's email system 

and illegally monitoring emails. (Id. at 1124). 

In addition, Defendants contacted the Snyder County District Attorney to press 

charges against Snook. (Doc. 4, 1125). On May 9,2014, after conducting an investigation, 

the District Attorney issued a press release stating that no criminal charges would be filed 

against Plaintiff due to insufficient evidence that she had engaged in criminal conduct. (/d.). 

Following her suspension, Plaintiff made statements to the press regarding her 

continued support of the Reading Workshop program, asserting her innocence with respect 

to allegations of criminal wrongdoing, and stating that she believed Defendants were 

retaliating against her for publicly advocating in favor of the Reading Workshop program. 

(Id. at mr 26,27). 

On May 5,2014, Snook met with Defendants for a hearing which Plaintiff contends 

was erroneously labeled as a "Loudermill hearing" for a vote regarding her termination. (ld. 

at 1128). At this meeting, Defendants allegedly did not hold avote and simply informed 

Plaintiff that they intended to vote in approximately two weeks as to whether they would hire 

aspecial prosecutor. (Id.). Subsequently, on May 19, 2014, Defendants did meet and 

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voted to hire Mark Remy as "special counsel" to handle "an unspecified personnel issue." 


(ld. at 11 29). 

Snook continues to remain suspended without pay and alleges that she has not 

received any hearing or written statement of the charges against her. (Id. at 11 30). 

III. STANDARD OF REVIEW 

Acomplaint must be dismissed under FED. R. CIV. P. 12(b)(6), if it does not allege 

"enough facts to state aclaim to relief that is plausible on its face." Bell Atl. Corp. v. 

Twombly, 550 U.S. 544, 570, 127 S. Ct. 1955, 167 L. Ed. 2d 929 (2007). The plaintiff must 

aver "factual content that allows the court to draw the reasonable inference that the 

defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 556 U.S. 662, 129 S. Ct. 

1937, 1949, 173 L. Ed. 2d 868 (2009). 

"Though acomplaint 'does not need detailed factual allegations, ... aformulaic 

recitation of the elements of acause of action will not do.'" DelRio-Mocci v. Connolly Prop. 

Inc., 672 F.3d 241,245 (3d Cir. 2012) (citing Twombly, 550 U.S. at 555). In other words, 

"[nac1:ual allegations must be enough to raise aright to relief above the speculative leveL" 

Covington v. Int'I Ass'n ofApproved Basketball Officials, 710 F.3d 114, 118 (3d Cir. 2013) 

(internal citations and quotation marks omitted). Acourt "take[s] as true all the factual 

allegations in the Complaint and the reasonable inferences that can be drawn from those 

facts, but ... disregard[s] legal conclusions and threadbare recitals of the elements of a 

cause of action, supported by mere conclusory statements." Ethypharm S.A. France V. 

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Abbott Laboratories, 707 F.3d 223, 231, n.14 (3d Gir. 2013) (internal citations and quotation 


marks omitted). 

Twombly and Iqbal require [a district court] to take the following three steps to 

determine the sufficiency of acomplaint: First, the court must take note of the 

elements a plaintiff must plead to state a claim. Second, the court should 

identify allegations that, because they are no more than conclusions, are not 

entitled to the assumption of truth. Finally, where there are well-pleaded 

factual allegations, a court should assume their veracity and then determine 

whether they plausibly give rise to an entitlement for relief. 

Connelly v. Steel Valley Sch. Dist., 706 F.3d 209, 212 (3d Gir. 2013). 

"[W]here the well-pleaded facts do not permit the court to infer more than the mere 

possibility of misconduct, the complaint has alleged - but it has not show[n] -that the 

pleader is entitled to relief." Iqbal, 556 U.S. at 679 (internal citations and quotation marks 

omitted). This "plausibility" determination will be a"context-specific task that requires the 

reviewing court to draw on its judicial experience and common sense." Id. 

However, even "if acomplaint is subject to Rule 12(b)(6) dismissal, adistrict court 

must permit acurative amendment unless such an amendment would be inequitable or 

'futile." PhilHps v. Cnty. ofAllegheny, 515 F.3d 224,245 (3d Gir. 2008). 

[E]ven when plaintiff does not seek leave to amend his complaint after adefendant 

moves to dismiss it, unless the district court finds that amendment would be 

inequitable or futile, the court must inform the plaintiff that he or she has leave to 

amend the complaint within aset period of time. 

Id. 

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IV. ANALYSIS 

A. Counts I, II, III • Plaintiff's Constitutional Claims 

Plaintiff brings three constitutional claims against all Defendants, including Knepp: 

First Amendment Retaliation (Count I), Procedural Due Process violations (Count II) and 

Substantive Due Process violations (Count III). 

To succeed on aclaim under 42 U.S.C. § 1983, the plaintiff must demonstrate the 

violation of a right protected by the Constitution or laws of the United States, committed by a 

person acting under color of state law. Nicini v. Morra, 212 F.3d 798, 806 (3d Cir. 2000) (en 

banc). Section 1983 is not in itself asource of substantive rights, instead providing a 

remedy for violations of rights protected by other federal statutes or by the U.S. Constitution. 

City of Oklahoma City v. Tuttle, 471 U.S. 808, 816,105 S.Ct. 2427, 85 L. Ed.2d 791 (1985). 

Therefore, in evaluating a§ 1983 claim, a Court must first "identify the exact contours of the 

underlying right said to have been violated" and determine "whether the plaintiff has alleged 

adeprivation of aconstitutional right at all." Nicini, 212 F.3d at 806 (citing Cntyof 

Sacramento v. Lewis, 523 U.S. 833, 841 n. 5,118 S.Ct. 1708, 140 L. Ed. 1043 (1998)). 

"The traditional definition of acting under color of state law requires that the 

defendant in a§ 1983 action have exercised power 'possessed by virtue of state law and 

made possible only because the wrongdoer is clothed with the authority of state law.'" West 

v. Atkins, 487 U.S. 42, 49, 108 S.Ct. 2250, 101 L. Ed.2d 40 (1988) (quoting United States v. 

Classic,313 U.S. 299, 326, 61 S.Ct.1031, 85 L. Ed. 1368 (1941)). A"defendant acts under 

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color of state law when he abuses the position given to him by the state." Id. at 49-50. 


While Courts have repeatedly held that an attorney does not act under color of state law 

sirnply by virtue of acting as an attorney or solicitor on behalf of a municipality or public 

school board,3 "there are three exceptional circumstances in which an attorney may become 

astate actor: (1) by acting as astate official, (2) by conspiring with a state official to deprive 

a person of his or her constitutional rights, or (3) by engaging in some action that is by its 

nature, chargeable to the state", Willis v. Carroll Tp., 2008 WL 644762, *5 (M.D. Pa. 2008) 

(internal citations and quotation marks omitted). 

Plaintiff contends that the second and third exceptions apply to Knepp. (Doc. 16, at 

5). Specifically, Plaintiff argues that "Knepp constituted an active agent throughout, 

recommending charges against Plaintiff, denying her a pre-deprivation hearing, overseeing 

her suspension without pay, and defaming her good name." (ld.). None of these 

contentions are adequately set forth in Plaintiffs Amended Complaint. At best, Snook's 

Amended Complaint broadly alleges that "Defendants" contacted the District Attomey of 

Snyder County in order to press charges against Plaintiff, that she "remains suspended 

without pay and has not received any hearing or written statement of the charges against 

her", and that "Defendants 0issued public statements indicating that Plaintiff had been 

suspended without pay" and accusing her of engaging in criminal conduct (Doc. 4, 11' 24, 25, 

30). These factual assertions fail to demonstrate, above the speculative level, that Knepp 

3 See, e.g., Angelico v. Lehigh Valley Hosp., 184 F.3d 268, 277 (3d Cir. 1999); Anderson v. 

Perhacs, 2013 WL 1336124, *4 (W.o. Pa. 2013); Spradlin v. Borough of Danville, 2005 WL 3320788, *3 

(M.D. Pa.2005). 

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conspired with one or more of the School District Defendants to deprive Snook of her 


constitutional rights or even what actions Knepp may have taken that, by their very nature, 

would be chargeable to the state. Additionally, Plaintiffs Amended Complaint does not set 

forth any facts which could reasonably be read as stating that Knepp possessed the 

authority to make the employment decisions that relate to, or allegedly violate, Snook's 

protected rights under § 1983. 

Furthermore, with respect to Plaintiffs contention that Knepp conspired with the 

other defendants to violate Plaintiffs rights, Plaintiffs Amended Complaint does not include 

any claim of conspiracy, or claim which could be reasonably read to imply an allegation of 

conspiracy, and is devoid of any factual allegations to support even an inference that there 

was an agreement or understanding between Knepp and one or more individuals to commit 

any of alleged unlawful acts set forth in the Amended Complaint. See Pellegrino Food 

Products Co., Inc. v. City of Warren, 136 F.Supp.2d 391,409-410 (W.O. Pa. 2000) ("To 

state asection 1983 conspiracy claim, a plaintiff must set forth factual allegations of 

combination, agreement, or understanding among all or between any of the defendants or 

coconspirators to plot, plan, or conspire to carry out the alleged chain of events. There 

must be an agreement of two or more persons to do acriminal act, or to do an unlawful act 

by unlawful means or for an unlawful purpose. The Third Circuit has also acknowledged 

that conclusory allegations of concerted action without facts actually rellecting such action 

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may be insufficient to state aconspiracy claim.") (Internal quotation marks and citations 


omitted). 

For the aforementioned reasons, Counts I, II, and III will be dismissed against 

Defendant Knepp. 

B. Count VI- Defamation 

Count VI of Plaintiffs Amended Complaint alleges that "the individual defendants 

defamed Plaintiff by publishing false statements about her or by directing that false 

statements be published about her in that Defendants indicated publicly that Plaintiff had 

engaged in criminal activity for which she was being suspended ...." (Doc. 4, ~ 52). 

To establish aclaim of defamation, a plaintiff must show: "(1) The defamatory 

character of the communication [;J (2) Its publication by the defendant [;J (3) Its application 

to the plaintiff [;J (4) The understanding by the recipient of its defamatory meaning [; and] (5) 

The understanding by the recipient of it as intended to be applied to the plaintiff." Graboff v. 

Colleran Firm, 744 F.3d 128, 135 (3d Cir. 2014) (citing Tucker v. Fischbein, 237 F.3d 275, 

281 (3d Cir. 2001)). Furthermore, "when a public official or public figure sues for 

defamation, the First Amendment demands that the plaintiff prove both that the statement 

was false and that it was made with 'actual malice.'" Tucker, 237 F.3d at 283 (collecting 

cases). 

As explained in this Court's memorandum opinion granting the School District 

Defendants' motion to dismiss Count VI, Plaintiffs claim for defamation fails for several 

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reasons. While Snook alleges the publication of false statements, she does not say who 


made the statements, when they were made, to whom they were made, or where these 

statements were allegedly published and in what way they were published. Plaintiffs mere 

assertions, without any supporting factual allegations, do not raise a right to relief above the 

speculative level. Additionally, Plaintiff had pleaded no facts that could lead to a reasonable 

inference of malice. 

As a result of Plaintiffs failure to adequately set forth facts necessary to plead a 

cause of action for defamation, the Court will dismiss Plaintiffs claim for defamation with 

leave to amend. 

C. Count VII- Abuse of Process 

The final Count in Plaintiffs Amended Complaint alleges that the individual 

defendants, including Knepp, "abused legal process against [Snook] by referring her to the 

criminal justice authorities for the institution of criminal charges against her" for the purpose 

of discrediting Plaintiff and her policies and programs and/or to force Plaintiff to resign her 

position. (Doc. 4, W56, 57). 

"The tort of 'abuse of process' is defined as the use of legal process against another 

'primarily to accomplish a purpose for which it is not designed.'" Rosen v. Am. Bank of 

Rolla, 627 A.2d 190, 192 (Pa. Super. Ct. 1993) (quoting Restatement (Second) of Torts, § 

682). To succeed on an abuse of process claim, 

the plaintiff must show some definite act or threat not authorized by the 

process, or aimed at an objective not legitimate in the use of the process ... ; 

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and there is no liability where the defendant has done nothing more than 

carry out the process to its authorized conclusion, even though with bad 

intentions. 

Lerner v. Lerner, 954 A.2d 1229, 1238 (Pa. Super. ct. 2008) (quoting Shiner v. Moriarty, 

706 A.2d 1228, 1236 (Pa. Super. Ct. 1998)) (internal alterations omitted). Additionally, a 

plaintiff must show that he or she suffered harm as a result of the abuse of process. Rosen, 

627 A.2d at 192. 

Plaintiff appears to confuse two separate and distinct actions: abuse of process and 

malicious use of process. 

The crux of an abuse of process claim is the "improper use of process after it 

has been issued, that is, a perversion of it." McGee v. Feege, 517 Pa. 247, 

535 A.2d 1020, 1023 (Pa.1987) (citations omitted). Under Pennsylvania law, 

"abuse of process" and "malicious use of process" are similar to, but 

ultimately distinct from one another. See, e.g., id. The critical difference 

between the two claims is that "[m]alicious use of civil process has to do with 

the wrongful initiation of such process, while abuse of civil process is 

concerned with a perversion of a process after it is issued." Id. (citations 

omitted). 

Kauffman v. Barbagello, 2013 WL 6388487, *14 (MD. Pa. 2013). As such, while the term 

"process", when used in the tort of abuse of process "'has been interpreted broadly, and 

encompasses the entire range of procedures incident to the litigation process," including 

discovery proceedings, the noticing of depositions and the issuing of subpoenas, Rosen, 

627 A.2d at 192 (quoting Nienstedt v. Wetzel, 133 Ariz. 348, 352 (1982)), it cannot be 

extended to include actions by Defendants in merely referring amatter to adistrict attorney. 

Plaintiffs claim is based on the alleged wrongful attempted initiation of an action against 

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her, not on the perversion of a legal process already underway. As such, Snook cannot 

sustain aclaim for abuse of process and the Court will dismiss this Count with prejudice. 

V. CONCLUSION 

For the foregoing reasons, the court will grant Defendant Knepp's Motion to Dismiss 

Plaintiffs Amended Cornplaint (Doc. 11). Aseparate Order follows. 

( 

obert D. Mariam 

United States District Judge 

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