2011 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

11-29-2011

Seeds of Peace Collective v. William Bochter

Precedential or Non-Precedential: Non-Precedential

Docket No. 10-2765

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 NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

__________

No. 10-2765

__________

SEEDS OF PEACE COLLECTIVE; THREE RIVERS 

CLIMATE CONVERGENCE

v.

CITY OF PITTSBURGH; LUKE RAVENSTAHL, Mayor of Pittsburgh; 

MICHAEL HUSS, Director of Public Safety; NATHAN HARPER, Chief of the 

Pittsburgh Bureau of Police; WILLIAM E. BOTCHER, Assistant Chief of the Pittsburgh 

Bureau of Police; MICHAEL T. RADLEY, Assistant Director of Pittsburgh City Parks; 

OFFICER KEVIN SELLERS (Badge No. 3602); OFFICER ERIC KURVACH (Badge 

No. 3480); OFFICERS DOE 1-100;

MICHAEL T. RADLEY, OFFICER KEVIN SELLERS, 

OFFICER ERICH KURVACH, 

Appellants.

On Appeal from the United States District Court

for the Western District of Pennsylvania

(D. C. No. 2-09-cv-01275)

District Judge: Honorable Gary L. Lancaster

Submitted under Third Circuit LAR 34.1(a)

on March 18, 2011

Before: BARRY, CHAGARES, and ROTH, Circuit Judges

(Opinion filed: November 29, 2011)
2

O P I N I O N

ROTH, Circuit Judge:

I. Introduction

Pittsburgh Assistant City Parks Director Michael Radley and Pittsburgh Police 

Officers Eric Kurvach and Kevin Sellers appeal the denial of their motion to dismiss 

claims by Three Rivers Climate Convergence (Three Rivers) under 42 U.S.C. § 1983 for 

violation of its First and Fourth Amendment rights. Three Rivers‟ complaint alleged that 

Radley deliberately obstructed its efforts to obtain permits to use Pittsburgh City parks 

for protests of an International Coal Conference and G-20 Summit taking place in 

Pittsburgh, and that he was involved in the seizure of its materials by City officials.1 

Radley contends that these claims should have been dismissed because Three Rivers 

failed to adequately allege his involvement in conduct violating the First and Fourth 

Amendments. 

II. Background

On December 11, 2009, Three Rivers and Seeds of Peace Collective (Seeds of 

Peace) filed an amended complaint, naming as defendants the City of Pittsburgh, Radley, 

and several other City officials and police officers. The complaint alleges, inter alia, that 

Three Rivers sought to mobilize people with similar views on climate and environmental 

 

1

Three Rivers has conceded that it has not adequately alleged claims against 

Officers Kurvach and Sellers and that these claims should be dismissed. Accordingly, we 

focus on Three Rivers‟ claims against Radley.
3

concerns to protest the International Coal Conference and G-20 Summit taking place in 

Pittsburgh during the week of September 20, 2009. Three Rivers sought to use two parks 

in Pittsburgh, Point State Park and later Schenley Park, for demonstrations and as a

“Convergence space” which would “provide a temporary, 24-hour-a-day, educationbased, sustainability-camp community with associated support infrastructure for 

attendees and demonstrators between September 20-25.” According to Three Rivers, the 

defendants obstructed and hindered its demonstration efforts in several ways. We 

consider only those allegations relating to Radley, Pittsburgh‟s Assistant City Parks 

Director.

Point State Park Permit. Three Rivers applied to use Point State Park several 

times, but “City officials” denied these applications for a variety of reasons. The officials

first claimed that the City police and the Secret Service would be using the entire park as 

a staging area and later claimed that they had never received Three Rivers‟ permit 

application. The City police later decided that they only needed half of the park but

Three Rivers was not informed of this decision and City officials continued to insist that 

the entire park was unavailable. Despite this insistence, City officials decided to hold in 

the park a “Free Speech Festival” featuring Al Gore and other prominent speakers on the 

evening before the G-20 Summit would begin. When Three Rivers modified its permit 

request to accommodate the festival, the City refused to issue the permit on the grounds 

that the City needed to use the park for two footraces scheduled for the week before and 

the week after the week of the G-20 Summit. Three Rivers and other groups then sued 

the City, City officials, and federal agencies responsible for the security of the G-20
4

Summit, alleging that the denial of a permit violated their First Amendment rights and 

seeking an injunction. See Codepink Pittsburgh Women for Peace v. U.S. Secret Serv., 

09-1235 (W.D. Pa. Sept. 17, 2009). Radley and other witnesses for the City testified at a 

hearing on the preliminary injunction and insisted that Three Rivers could not use the 

park. The District Court granted the preliminary injunction in part and required the City 

to permit Three Rivers to use the park for a demonstration during one day of the G-20 

Summit. 

Seizure of Materials. Because Three Rivers‟ demonstrators could not camp in the 

park overnight, it requested permission to store its tent, tables, chairs, and educational 

materials overnight in the park. Radley gave Three Rivers permission to store these 

items overnight in the park, stating that the City did not “plan to remove your vehicle or 

overnight tent,” but refused Three Rivers‟ request to leave two people overnight to 

protect its materials because this would constitute overnight camping. In reliance on 

Radley‟s statements, Three Rivers left its materials in the park but, by the following day, 

the items were gone. A City spokesperson denied that the police had taken Three Rivers‟ 

property, telling a reporter, “It was Public Works.” Despite numerous calls to the City, 

Three Rivers has still not been able to recover its property or obtain compensation.2

 

2

Three Rivers also alleges that City officials (1) obstructed its demonstration 

efforts in Schenley Park by falsely insisting – both privately to Three Rivers and in 

testimony in the Codepink lawsuit – that the City had a policy against overnight camping 

in the park; (2) delayed issuance of a permit to use Schenley Park for a multi-day event; 

and (3) hindered Three Rivers‟ access to Schenley Park on Thursday, September 24,

despite prior assurances that it would not do so. None of these allegations mentions 

Radley. 
5

Litigation. After the Coal Conference and G-20 Summit ended, Three Rivers and 

Seeds of Peace initiated this action against the City, naming as defendants Radley, 

Sellers, and Kurvach, as well as the City of Pittsburgh, its Mayor (Luke Ravenstahl), 

Director of Public Safety (Michael Huss), Police Chief (Nathan Harper), Assistant Police 

Chief (William Botcher), and unnamed Officers Doe 1-100. The defendants moved for 

partial dismissal of the complaint under Fed. R. Civ. P. 12(b)(6), asserting qualified 

immunity and arguing that the personal involvement of several officials had not been 

adequately pleaded. The District Court agreed and dismissed all claims against 

Ravenstahl, Huss, Harper, and Botcher but only some of the claims against Radley, 

Kurvach and Sellers. The District Court permitted Three Rivers to proceed with its First 

and Fourth Amendment claims against these defendants. Radley, Kurvach and Sellers 

appealed the District Court‟s order. 

III. Jurisdiction and Standard of Review

Because appellants moved to dismiss on the basis of qualified immunity, the 

District Court‟s order partially denying the motion is a “collateral order” that is treated as 

final for purposes of 28 U.S.C. § 1291. See Ashcroft v. Iqbal, 129 S. Ct. 1937, 1946 

(2009). We review de novo the denial of Radley‟s motion to dismiss to determine 

whether Three Rivers‟ complaint “contain[s] sufficient factual matter, accepted as true, to 

„state a claim to relief that is plausible on its face.‟” Id. at 1949.

IV. Discussion

Qualified immunity is not merely a defense to liability but an immunity from suit 

and thus is a proper basis for a motion to dismiss under Rule 12(b)(6). Thomas v. 
6

Independence Twp., 463 F.3d 285, 291 (3d Cir. 2006). In this case, the dispositive 

question for qualified immunity purposes is whether Three Rivers has sufficiently alleged 

that Radley violated its constitutional rights. See Pearson v. Callahan, -- U.S. --, 129 S.

Ct. 808, 818 (2009). At a minimum, “„[a] defendant in a civil rights action must have 

personal involvement in the alleged wrongs‟ to be liable.” Sutton v. Rasheed, 323 F.3d 

236, 250 (3d Cir. 2003) (quoting Rode v. Dellarciprette, 845 F.2d 1195, 1207 (3d Cir. 

1988)). To recover against Radley, Three Rivers was therefore required to allege facts 

showing that Radley “through [his] own individual actions, has violated the 

Constitution.” Iqbal, 129 S. Ct. at 1948. Three Rivers‟ complaint makes only three 

allegations concerning Radley‟s conduct and each falls short of this requirement. The 

complaint first alleges that:

Beginning in June 2009, as a matter of policy and practice City of 

Pittsburgh officials, including Mayor Ravenstahl, Public Safety Director 

Huss, Police Chief Harper, Assistant Chief Bochter and Assistant Parks 

Director Radley, deliberately misled [Three Rivers] leaders about the 

availability of traditional public forums, failed to issue and deliver permits 

to [Three Rivers] after publicly claiming they had been approved, outright 

denied [Three Rivers‟] permit applications for specious and discriminatory 

reasons, and directed employees and agents to engage in various forms of 

harassment and intimidation, including seizing supplies that were essential 

to [Three Rivers‟] planned demonstrations.

However, when the legal conclusions in this sentence are pared away, see Iqbal, 129 S. 

Ct. at 1950, we are left merely with allegations that Radley and a number of other 

defendants “failed to issue and deliver permits to [Three Rivers] after publicly claiming 

they had been approved, outright denied [Three Rivers‟] permit applications . . ..” 

Standing alone, this allegation is simply too vague to provide Radley “fair notice” of the 
7

claims against him and “the grounds upon which [they] rest[].”3 Bell Atl. Corp. v. 

Twombly, 550 U.S. 544, 555 (2007).

The complaint‟s second allegation concerning Radley is more specific: Radley 

was one of several City witnesses who testified at the Codepink preliminary injunction 

hearing and “insisted that the City could not allow [Three Rivers] to use Point State Park 

. . ..” But Three Rivers does not allege that this testimony was false or misleading, and 

we fail to see how Radley‟s presumably truthful testimony at a hearing could violate 

Three Rivers‟ constitutional rights. Three Rivers argues that we can infer that Radley 

was the person most directly involved in the decision not to issue them a permit – and 

therefore liable for withholding the permit – because the City had him testify at the 

hearing. Even if Radley were the only City witness who testified at the hearing this 

inference would be a stretch, but the complaint alleges that Radley was merely one of 

several City witnesses, completely undermining the inference. Radley‟s role in the 

permit decision should have been alleged in the complaint, rather than left to inference.

4

 

See Iqbal, 129 S. Ct. at 1950.

 

3

Similarly, we reject Three Rivers‟ suggestion that we construe the generic 

references to “the City” or “City officials” throughout the complaint as including Radley. 

The complaint does not define these terms and thus does not provide Radley “fair notice” 

of what he is alleged to have done to violate Three Rivers‟ constitutional rights. See 

Twombly, 550 U.S. at 561. Additionally, we do not consider factual allegations made in 

Three Rivers‟ brief but not pleaded in the complaint. See Kost v. Kozakiewicz, 1 F.3d 

176, 183 n.4 (3d Cir. 1993); Williams v. New Castle Cnty., 970 F.2d 1260, 1266 n.4 (3d 

Cir. 1992).

4

Three Rivers‟ failure to allege Radley‟s decision-making role is particularly 

puzzling because it obtained discovery from the City in the Codepink lawsuit and 

presumably had the opportunity to examine Radley at the preliminary injunction hearing

in that case. Although Three Rivers‟ complaint “incorporates facts from Codepink that 
8

Finally, the complaint alleges that Radley permitted Three Rivers to store its tent 

and other materials at Schenley Park overnight, told it that the City “did not plan to 

remove [its] vehicle or overnight tent,” and refused Three Rivers‟ request to have two 

members guard the tent and materials overnight. Despite this statement, the City‟s Public 

Works Department allegedly seized Three Rivers‟ tent and materials. These allegations 

suggest at most that Radley negligently failed to communicate with Public Works to 

ensure that Three Rivers‟ property would not be seized. This does not rise to the level of 

a Fourth Amendment violation. See, e.g., Herring v. United States, 129 S. Ct. 695, 703 

(2009) (“[P]olice negligence in obtaining a warrant [does not] rise to the level of a Fourth 

Amendment violation.”); Medina v. Cram, 252 F.3d 1124, 1132 (10th Cir. 2001)

(negligence leading to violent confrontation not sufficient for Fourth Amendment 

excessive force claim).5

Three Rivers argues that, even if its pleadings are deficient, it should be given an 

opportunity to amend its complaint to allege in greater detail Radley‟s involvement in the 

conduct giving rise to its claims. See Great W. Mining & Mineral Co. v. Fox Rothschild 

LLP, 615 F.3d 159, 174 (3d Cir. 2010) (“[I]f a complaint is subject to a Rule 12(b)(6) 

dismissal, a district court must permit a curative amendment unless such an amendment 

would be inequitable or futile.”). Because Three Rivers has not described in detail the 

 

are relevant” to its claims, no documents from the lawsuit are attached to the complaint or 

incorporated by reference. 

5

Three Rivers contends that it has alleged a pattern of obstructive conduct by City 

officials which supports an inference that Radley‟s assurances were intentionally 

misleading. Even if the complaint sufficiently alleged such a pattern, Radley‟s personal 

involvement in obstructive conduct is not sufficiently alleged, see supra n.3, and thus 

does not support an inference that he intended to have Three Rivers‟ property seized.
9

additional factual allegations it would make, we leave it to the District Court to consider 

on remand whether leave should be given to amend the complaint pursuant to Fed. R. 

Civ. P. 15(a).

V. Conclusion

Three Rivers concedes that its claims against Sellers and Kurvach should have 

been dismissed. We conclude that the complaint fails to state a claim against Radley. 

Accordingly, we will vacate the order of the District Court to the extent that it denied 

appellants‟ partial motion to dismiss Three Rivers‟ claims against them and remand this 

case to the District Court with instructions to consider whether Three Rivers should be 

given leave to amend the complaint.