IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

KURT THOMPSON, : No. 4:06-cv-00518

:

Plaintiff, : (Judge McClure)

:

v. :

:

MARK LEHMAN, Mayor of Jersey :

Shore, ANDREW LYON, Jersey :

Shore Borough Council Member, and :

CHERYL BRUNGARD, Jersey :

Shore Borough Council President, :

:

Defendants. :

O R D E R

August 17, 2006

BACKGROUND:

On March 10, 2006, plaintiff Kurt Thompson initiated this civil rights action

by filing a complaint naming Mark Lehman, Andrew Lyon, and Cheryl Brungard

as defendants. Lehman is the Mayor of Jersey Shore Borough, Pennsylvania, Lyon

is a Borough Council Member, and Brungard is the Borough Council President. 

Plaintiff alleges that the defendants deprived him of his First Amendment right to

free speech by preventing him from speaking on matters of public concern at

Jersey Shore Borough Council meetings. Plaintiff also complains that defendants

retaliated against him for engaging in protected speech. Counts I, II, and III assert

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claims under 42 U.S.C. § 1983 against defendants Lehman, Lyon, and Brungard,

respectively, and Count IV asserts a claim under 42 U.S.C. § 1985(3) against

Lehman and Lyon.

On July 10, 2006, all defendants moved to dismiss the complaint with

prejudice pursuant to Federal Rule of Civil Procedure 12(b)(6). (Motion to

Dismiss, Rec. Doc. No. 3; Brief in Support, Rec. Doc. No. 4.) The motion is fully

briefed and ripe for our review. For the following reasons, we will deny the

motion.

DISCUSSION:

I. Motion to Dismiss Standard

The defendants argue that the complaint must be dismissed pursuant to

Federal Rule of Civil Procedure 12(b)(6) for “failure to state a claim upon which

relief can be granted.” Fed. R. Civ. P. 12(b)(6). 

When considering a motion to dismiss under Rule 12(b)(6), the court must

view all allegations stated in the complaint as true and construe all inferences in the

light most favorable to plaintiff. Hishon v. King & Spalding, 467 U.S. 69, 73

(1984); Kost v. Kozakiewicz, 1 F.3d 176, 183 (3d Cir. 1993). In ruling on a

motion to dismiss, the court primarily considers the allegations of the pleading, but

is not required to consider legal conclusions alleged in the complaint. Kost, 1 F.3d

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at 183. At the motion to dismiss stage, the court considers whether plaintiff is

entitled to offer evidence to support the allegations in the complaint. Maio v.

Aetna, Inc., 221 F.3d 472, 482 (3d Cir. 2000). A complaint should be dismissed

only if the court, from evaluating the allegations in the complaint, is certain that

under any set of facts relief cannot be granted. Conley v. Gibson, 355 U.S. 41, 45-

46 (1957); Morse v. Lower Merion School Dist., 132 F.3d 902, 906 (3d Cir. 1997);

Markowitz v. Northeast Land, Co., 906 F.2d 100, 103 (3d Cir. 1994).

The failure-to-state-a-claim standard of Rule 12(b)(6) “streamlines litigation

by dispensing with needless discovery and factfinding.” Neitzke v. Williams, 490

U.S. 319, 326-27 (1989). A court may dismiss a claim under Rule 12(b)(6) where

there is a “dispositive issue of law.” Id. at 326. If it is beyond a doubt that the

non-moving party can prove no set of facts in support of its allegations, then a

claim must be dismissed “without regard to whether it is based on an outlandish

legal theory or on a close but ultimately unavailing one.” Id. at 327.

The liberal notice pleading standard set forth in Rule 8(a)(2), requiring only

“a short and plain statement of the claim showing that the pleader is entitled to

relief,” applies in civil rights cases. Leatherman v. Tarrant County Narcotics

Intelligence and Coordination Unit, 507 U.S. 163 (1993); Evancho v. Fisher, 423

F.3d 347, 352 (3d Cir. 2005) (“Since Leatherman, which was decided in 1993, the

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Third Circuit has applied the more liberal notice pleading standard set forth in Rule

8(a) in civil rights cases.”); Abbott v. Latshaw, 164 F.3d 141 (3d Cir. 1998). “The

notice pleading standard of Federal Rule of Civil Procedure 8(a) requires only that

a complaint contain a short and plain statement showing a right to relief, not a

detailed recitation of the proof that will in the end establish such a right.” Graw v.

Fantasky, 68 F. App’x 378, 381 (3d Cir. 2003) (quoting Pryor v. Nat’l Collegiate

Athletic Ass’n, 288 F.3d 548, 564 (3d Cir. 2002)). 

II. Analysis

There are three distinct claims in plaintiff’s complaint. Plaintiff alleges that

(1) his First Amendment right to free speech was violated; (2) the defendants

unlawfully retaliated against plaintiff for engaging in protected speech; and (3)

defendants Lehman and Lyon conspired to deprive plaintiff of equal protection of

the laws because of plaintiff’s speech. Defendants have moved to dismiss all

claims, with prejudice. Below we evaluate each claim separately, as well as

defendants’ assertion of qualified immunity..

1. Right to Free Speech

“For a right to speak claim, a plaintiff must allege that: (1) the speech was

protected by the First Amendment and (2) the government excluded the plaintiff’s

speech in a public or non-public forum without justifying its actions to the standard

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required for the particular forum.” Shaw, 68 F. App’x at 381.

Plaintiff states a claim against all defendants for interfering with his First

Amendment right to speak out publicly. Plaintiff claims that he was unlawfully

barred from a public meeting by the Jersey Shore Chief of Police after defendant

Lehman allegedly “contacted the Chief of Police and ordered him to remove

Plaintiff Kurt Thompson from the public meeting.” (Complaint, Rec. Doc. No. 1,

at ¶ 12.) Plaintiff alleges that defendant Brungard “applies more stringent time

constraints to public comment or questions by Plaintiff Kurt Thompson than to

other members of the public attending council meetings.” (Rec. Doc. No. 1, at ¶

14.) Plaintiff also alleges that he was “physically removed from the Jersey Shore

Borough Building by Defendant Andrew Lyon despite the fact that Plaintiff was at

the Jersey Shore Borough Building for legitimate lawful reason and was not being

disruptive.” (Rec. Doc. No. 1, at ¶ 8.)

While the allegations lack specificity, plaintiff is not required to provide a

“detailed recitation of the proof that will in the end establish such a right.” Graw,

68 F. App’x at 381. At the motion to dismiss stage, we view all allegations stated

in the complaint as true and construe all inferences in the light most favorable to

plaintiff. King & Spalding, 467 U.S. at 73. Because the allegations in the

complaint concern acts on the part of defendants that could be found violative of

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plaintiff’s First Amendment right to speak, we will deny the motion to dismiss.

2. First Amendment Retaliation

Plaintiff has also asserted that defendants “engaged in a pattern and practice

of denying Plaintiff Kurt Thompson’s First Amendment Rights through threats and

intimidation.” (Rec. Doc. No. 1, at ¶ 7.) The acts plaintiff contends amount to

threats and intimidation are the following:

16. During Jersey Shore Borough Council public

meetings, Defendant Andrew Lyon attempts to

embarrass Plaintiff Kurt Thompson by telling him

“stand up”, [sic] when Plaintiff Kurt Thompson is

already standing up.

17. During Jersey Shore Borough Council public

meetings, Defendant Mark Kehman has called

Plaintiff Kurt Thompson a liar.

18. In or about January 2006, Defendants Mark

Lehman and Andrew Lyon persuaded an

individual who was a tenant in a property owned

by Plaintiff’s family to file criminal charges

against Plaintiff Kurt Thompson.

19. Defendants Lehman and Lyon promised the tenant

that they would help him pursue the charges

because it was their goal to “get him [Kurt

Thompson] out of Jersey Shore.”

20. In a further attempt to take retaliation against

Plaintiff Kurt Thompson for his exercise of his

First Amendment Right to Free Speech and to

intimidate him from any future exercise of his

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rights, Defendant Andrew Lyon has attempted to

persuade the Jersey Shore Borough Manager to

terminate the employment of Plaintiff Kurt

Thompson’s wife, who is employed by the Jersey

Shore Borough.

(Rec. Doc. No. 1, at ¶¶ 16-20.)

There are two distinct types of retaliation alleged here. The first is verbal

conduct directed at plaintiff, ridiculing him by telling him to “stand up” when he is

already standing, and calling him a liar during borough council meetings. The

second is the attempted exertion of influence over third parties to take some action

detrimental to plaintiff.

“In general, constitutional retaliation claims are analyzed under a three-part

test. Plaintiff must prove (1) that he engaged in constitutionally-protected activity;

(2) that the government responded with retaliation; and (3) that the protected

activity caused the retaliation.” Eichenlaub v. Twp. of Indiana, 385 F.3d 274, 282

(3d Cir. 2004) (Chertoff, J.).

Defendants argue that the behavior complained of is not actionable, because

the verbal conduct of defendants was not “particularly virulent,” McLaughlin v.

Watson, 271 F.3d 566, 573 (3d Cir. 2001), and because defendants’ alleged

attempts to exert influence over third parties to take action against plaintiff did not

involve threat, coercion, or intimidation, id.. Defendants argue that the behavior

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described in paragraphs 16-20 of the complaint is “de minimis and not actionable.” 

(Rec. Doc. No. 10, at 5.)

Plaintiff responds that he relies on the defendants’ entire course of conduct

to establish his claim of retaliation, and that while each instance of retaliation may

be insufficient to state a claim when viewed in isolation from the others, when

viewed together, the conduct of defendants amounts to unconstitutional retaliation. 

(Rec. Doc. No. 6, at 7-8.)

We agree with plaintiff. The United States Court of Appeals for the Third

Circuit has stated that “a plaintiff may be able to establish liability under § 1983

based upon a continuing course of conduct even though some or all of the conduct

complained of would be de minimis by itself or if viewed in isolation.” Brennan v.

Norton, 350 F.3d 399, 419 (3d Cir. 2003) (McKee, J.). While defendants have

cited authority suggesting that the public ridicule to which plaintiff was subjected,

and the defendants’ alleged exertion of influence over third parties to the detriment

of plaintiff, is not actionable, at the motion to dismiss stage, the plaintiff is entitled

to the benefit of the doubt. We are required to construe all inferences in the light

most favorable to plaintiff. King & Spalding, 467 U.S. 69 at 73.

 We will deny the motion to dismiss insofar as it relates to plaintiff’s

retaliation claim. 

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3. Conspiracy

In Count IV of the complaint, plaintiff alleges a conspiracy claim under 42

U.S.C. § 1985(3) against defendants Lehman and Lyon. Defendants moved to

dismiss this count, and plaintiff conceded that the complaint fails to articulate the

elements necessary to support a cause of action under 42 U.S.C. § 1985(3). 

Plaintiff states that it was his intention to assert the conspiracy claim under § 1983,

and not § 1985(3). Plaintiff requests leave to amend the complaint accordingly. 

Defendants, in their reply brief, argue that plaintiff should be denied leave to

amend because amendment would be futile.

Federal Rule of Civil Procedure 15(a) provides that “[a] party may amend

the party’s pleading once as a matter of course at any time before a responsive

pleading is served.” Fed. R. Civ. P. 15(a). “Otherwise a party may amend the

party’s pleading only by leave of court or by written consent of the adverse party;

and leave shall be freely given when justice so requires.” Id.

Under Rule 15(a), plaintiff may amend the complaint without leave of court

because defendants have not answered the complaint. “A motion to dismiss is not

a ‘responsive pleading’ within the meaning of Rule 15(a).” Beck v. Athens Bldg.

Loan & Sav. Ass’n, 65 F.R.D. 691, 694 (M.D. Pa. 1974) (Nealon, J.). Because

defendants have not filed an answer to the complaint, plaintiff is free to amend the

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complaint without leave of court.

4. Qualified Immunity

Defendants also argue that they are entitled to qualified immunity. A

defendant has the burden of establishing that he or she is entitled to qualified

immunity. Kopec v. Tate, 361 F.3d 772, 776 (3d Cir. 2004). 

We utilize a two-step inquiry when ruling on the issue of qualified

immunity. Saucier v. Katz, 533 U.S. 194, 200-01 (2001). “First, the court must

consider whether the facts alleged, taken in the light most favorable to the plaintiff,

show that the officer’s conduct violated a constitutional right.” Id. at 201. If “a

violation could be made out on a favorable view of the parties’ submissions, the

next sequential step is to ask whether the right was clearly established.” Id. “The

relevant dispositive inquiry in making this determination is whether it would be

clear to a reasonable officer that his conduct was unlawful in the situation he

confronted.” Kopec, 361 F.3d at 776 (quoting Saucier, 533 U.S. at 201). 

Defendants simply argue that “[s]ince the Complaint as pled fails to state a

claim for any violation of the First Amendment . . . it is only reasonable to infer

that each of the individual Defendants could have believed their conduct was

lawful in light of clearly established law and the information they possessed.” 

(Rec. Doc. No. 4, at 15.) As we have found that, when viewing the allegations in

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the light most favorable to the plaintiff, the complaint alleges conduct possibly

violative of the First Amendment, there is no inference that the defendants believed

their conduct to be lawful. Defendants have not carried their burden with respect

to the issue of qualified immunity. Accordingly, we will deny the motion.

NOW, THEREFORE, IT IS HEREBY ORDERED THAT:

1. The defendants’ Motion to Dismiss Plaintiff’s Complaint is denied. 

(Rec. Doc. No. 3.)

2. Plaintiff shall file an amended complaint within ten (10) days deleting

any reference to 42 U.S.C. § 1985.

s/James F. McClure, Jr.

James F. McClure, Jr.

United States District Judge

 

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