NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

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No. 11-1937

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KENNETH A. ASHTON, SR. and WILLIAM E. ASHTON,

 Appellants

v.

CITY OF UNIONTOWN; EDWARD FIKE, both individually and as mayor of 

Uniontown; JASON COX, both individually and as Uniontown Chief of Police; 

GEORGIA TOMI, both individually and as an employee of the City of Uniontown

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On Appeal from the United States District Court

for the Western District of Pennsylvania

(D.C. No. 10-cv-00803)

District Judge: Honorable Gary L. Lancaster

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Submitted Under Third Circuit LAR 34.1(a)

December 8, 2011

Before: HARDIMAN and BARRY, Circuit Judges and SLOMSKY*, District Judge

Filed: January 25, 2012

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OPINION OF THE COURT

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*

The Honorable Joel H. Slomsky, District Judge for the United States District 

Court for the Eastern District of Pennsylvania, sitting by designation.
2

SLOMSKY, District Judge

Kenneth A. Ashton, Sr. and William E. Ashton appeal the District Court’s order

dismissing their federal civil rights suit brought pursuant to 42 U.S.C § 1983. We will 

affirm.

I.

Because we write for the parties who are well acquainted with the case, we 

recount only the essential facts and procedural history. On June 12, 2008, William 

Ashton went to his motorcycle, parked on East Main Street in Uniontown, Pennsylvania. 

He noticed that Georgia Tomi, a Uniontown meter maid, was issuing him a ticket. 

William informed Tomi he would move his vehicle and started to mount it. While 

observing this movement, Tomi struck William once in the back with a closed fist.

After being struck, William told Tomi he was going to the Mayor’s Office in City 

Hall to file a complaint against her. Tomi, along with William’s brother, Kenneth A. 

Ashton, Sr., followed him to City Hall. Upon arrival, William entered the building and 

asked to speak with Mayor Edward Fike while Kenneth and Tomi waited outside. 

William was informed that the Mayor was unavailable. Outside, Kenneth met and spoke 

with Jason Cox, Uniontown’s Police Chief. He explained the events that transpired 

between his brother and Tomi. Chief Cox questioned Tomi regarding the incident, and 

she admitted striking William. Neither the City of Uniontown nor the police department 

further investigated the matter involving Tomi or disciplined her.

Subsequent to these events, but stemming from them, Kenneth and William were 

cited for and found guilty of violations of Pennsylvania state law. Kenneth was found 
3

guilty of one count of disorderly conduct by use of obscene language or gesture, 18 Pa. 

Cons. Stat. § 5503(a)(3), and one count of harassment by following someone in or about 

a public place, 18 Pa. Cons. Stat. § 2709(a)(2). William was found guilty of driving with 

an improper class of license, 75 Pa. Cons. Stat. § 1504(a).

On June 11, 2010, Appellants filed in the District Court the Complaint naming as 

Defendants the City of Uniontown, Mayor Fike, Chief Cox, and meter maid Tomi. An 

Amended Complaint was later filed asserting: 1) § 1983 claims for violations of their 

First, Fourth, and Fourteenth Amendment rights, and 2) various state claims including 

assault, battery, abuse of process, intentional infliction of emotional distress, negligence, 

gross negligence, defamation, fraud, and civil conspiracy. On December 13, 2010, 

Defendants filed a Motion to Dismiss the Amended Complaint, which was referred to a 

U.S. Magistrate Judge for a Report and Recommendation. On February 11, 2011, the 

Magistrate Judge issued a Report and Recommendation. He recommended that the 

federal claims brought pursuant to 42 U.S.C § 1983 be dismissed and the District Court 

decline to exercise supplemental jurisdiction over the state claims. On March 11, 2011, 

the District Court granted the Motion to Dismiss, adopting the Report and 

Recommendation.

II.

The Magistrate Judge issued the Report and Recommendation pursuant to 28 

U.S.C. § 636(b)(1)(B). The District Court reviewed the Magistrate Judge’s Report and 

Recommendation pursuant to 28 U.S.C. § 1331. We have jurisdiction over this appeal 

pursuant to 28 U.S.C. § 1291, and our review of the District Court’s grant of a motion to 
4

dismiss is plenary. Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 906 (3d Cir. 1997)

(citing Jordan v. Fox, Rothschild, O’Brien & Frankel, 20 F.3d 1250 (3d Cir. 1994)). In 

reviewing the lower court’s decision, we must “accept as true all of the allegations in the 

complaint and all reasonable inferences that can be drawn therefrom, and view them in 

the light most favorable to the plaintiff.” Morse, 132 F.3d at 906 (citations omitted). 

However, a court will not credit the “bald assertions” or “legal conclusions” of a 

complaint. Id.

III.

A. First Amendment Claim

Appellants argue the District Court erred in dismissing their First Amendment 

retaliation claim because the United States Supreme Court’s decision in Heck v. 

Humphrey, 512 U.S. 477 (1994), which limits litigation of a civil rights claim arising 

from a conviction, does not apply here.1 (Appellants’ Br. 10–13; Reply Br. 5–6.) 

Initially, a prima facie showing of First Amendment retaliation under 42 U.S.C. § 1983

requires a plaintiff to demonstrate: 1) a plaintiff engaged in speech protected by the First 

Amendment; 2) the government responded with retaliatory action that would cause a 

person of ordinary firmness not to exercise his First Amendment right; and 3) there is a 

causal link between the retaliation and the protected speech. Thomas v. Independence 

 

1 Appellants also claim the District Court should not have dismissed their claim 

because they established a prima facie showing of First Amendment retaliation. Because 

the Heck doctrine bars their claim, we will not address this argument.
5

Twp., 463 F.3d 285, 296 (3d Cir. 2006). A plaintiff’s right, however, to maintain a First 

Amendment retaliation action is not absolute. See Heck, 512 U.S. at 486–87. In Gilles v. 

Davis, 427 F.3d 197 (3d Cir. 2005), we explained that, under Heck, “a § 1983 action that 

impugns the validity of the plaintiff’s underlying conviction cannot be maintained unless 

the conviction has been reversed on direct appeal or impaired by collateral proceedings.” 

Gilles, 427 F.3d at 208–09.

Appellants allege that on June 12, 2008, they engaged in protected activity under 

the First Amendment when they discussed with meter maid Tomi and then with Chief 

Cox the conduct of Tomi in striking William and issuing him a ticket. (Appellants’ Br. 

12; App. II 13 ¶ 34.) They further claim that Tomi retaliated against them by making 

false statements “to [the] police, the district attorney and others” (Appellants’ Br. 12; 

App. II 13, 14 ¶¶ 35, 40) and that Chief Cox retaliated against them by: 1) refusing to 

investigate Tomi’s conduct; 2) refusing to discipline Tomi; and 3) making false 

statements “to [the] police, the district attorney and others.” (Appellants’ Br. 12; App. II 

13–14 ¶¶ 36–40.)

As noted previously, Appellants were charged with and convicted of state crimes 

arising from the events of June 12, 2008. Kenneth was found guilty of disorderly 

conduct and harassment. (App. II 26–33.) William was found guilty of use of an 

improper class of license. (App. II 34–36.) We must decide whether permitting 

Appellants’ First Amendment claim to proceed in this case would impugn the validity of 

Appellants’ convictions. Here, Kenneth’s First Amendment retaliation claim fails 

because his convictions for disorderly conduct and harassment arise from his actions 
6

outside of City Hall and are barred by Heck and Gilles. In Gilles, the appellant’s 

preaching enraged bystanders, which caused authorities to cite him for disorderly 

conduct. The appellant later filed a § 1983 action, alleging the infringement of his First 

Amendment right. We held that Heck barred the appellant’s claim because it would 

create “parallel litigation over whether [the appellant’s] activity constituted disorderly 

conduct and could result in a conflicting resolution arising from the same conduct.” 

Gilles, 427 F.3d at 209. Similarly here, Kenneth’s disorderly conduct and harassment 

convictions arise from his conduct on June 12, 2008. Though we do not know the precise 

behavior underlying these convictions, the record establishes that Kenneth went to City 

Hall with Tomi to complain about her conduct. On the same day, he was cited for 

disorderly conduct and harassment. The only logical conclusion from these facts is that 

his convictions arise from the June 12, 2008 events. Because we would have to decide 

whether William’s conduct on June 12, 2008 constitutes protected activity under the First 

Amendment, permitting his claim to proceed would necessarily impugn the validity of his 

underlying convictions for disorderly conduct and harassment.

Likewise, William’s First Amendment retaliation claim is barred by the Heck

doctrine and Gilles. William alleges Tomi and Cox retaliated against him by making 

false statements “to [the] police, the district attorney and others” and by refusing to 

investigate or discipline Tomi, presumably believing her version of the events over that 

of William. For the First Amendment retaliation claim to be barred by the Heck doctrine, 

the alleged false statements must impugn William’s conviction. William has not pled 

with any specificity the substance of these false statements nor any fact warranting an 
7

inference that the statements were unrelated to the June 12, 2008 events. Therefore, after 

careful review of the record and based on William’s allegation that these false statements 

were made “to [the] police, the district attorney and others,” it logically follows that the 

statements made by Tomi and Cox relate to the incident of June 12, 2008. Because 

William’s conviction for driving with an improper class of license also stems from the 

June 12, 2008 events, if we were to hear the claim, we necessarily would have to decide 

whether William’s conviction was valid or was an act of retaliation. Permitting William

to proceed with his First Amendment retaliation claim would impugn the validity of his 

underlying conviction because both the conviction and First Amendment retaliation claim 

are based in part on the alleged “false statements.”

Accordingly, we will affirm the District Court’s dismissal of Appellants’ First 

Amendment retaliation claim.

B. Excessive Force Under the Fourth and Fourteenth Amendments

William contests the District Court’s dismissal of his excessive force claims. The 

Fourth Amendment protects a person from being subjected to unreasonable seizure by the 

authorities. To state a claim for unreasonable seizure under the Fourth Amendment, a 

plaintiff must show: 1) that a seizure occurred and 2) that the seizure was unreasonable. 

Rivas v. City of Passaic, 365 F.3d 181, 198 (3d Cir. 2004) (quoting Curley v. Klem, 298 

F.3d 271, 279 (3d Cir. 2002)). Force which is excessive and unreasonable may rise to the 

level of a seizure. See Abraham v. Raso, 183 F.3d 279, 287–88 (3d Cir. 1999). 

Therefore, when an officer restrains a person from walking away freely, a seizure may 

occur. Rivas, 365 F.3d at 198.
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If a plaintiff cannot establish a Fourth Amendment seizure, a substantive due 

process analysis is applied to the same factual averments. See Cnty. of Sacramento v. 

Lewis, 523 U.S. 833, 846 (1998). The substantive due process prong of the Fourteenth 

Amendment protects against “the exercise of power without any reasonable justification 

in the service of a legitimate governmental objective.” Id. To establish a substantive due 

process claim, a plaintiff must demonstrate: 1) an actor engaged in conduct under color 

of state law; 2) a deprivation of a protected liberty interest by that conduct; and 3) the 

deprivation shocks the conscience. Chainey v. Street, 523 F.3d 200, 219 (3d Cir. 2008). 

We have consistently held that only the most egregious official conduct shocks the 

conscience. Id. (quoting United Artists Theatre Circuit, Inc. v. Twp. of Warrington, 316 

F.3d 392, 400 (3d Cir. 2003)).

Here, William argues first that he has alleged sufficiently the use of excessive and 

unreasonable force under the Fourth Amendment resulting in a seizure because a seizure 

occurs whenever a government actor terminates an individual’s ability to move freely. 

He contends that when Tomi struck him on the back with a closed fist, it thwarted his 

freedom of movement and thereby constituted a seizure. (Appellants’ Br. 15–16.) 

Accepting William’s allegations as true, he fails to demonstrate that this act rises to the 

level of a seizure because his movement was not occluded. In fact, William remained 

free to walk to City Hall, which he promptly did following the incident. Accordingly, the 

act alleged is not the type of force required to be present to constitute a seizure. Compare 

Abraham, 183 F.3d at 288 (finding the plaintiff was “seized” after being shot), with

Gottlieb v. Laurel Highlands Reg’l. Sch. Dist., 272 F.3d 168, 172 (3d Cir. 2001) (finding 
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a student was not seized after a public school teacher allegedly pushed the student into a 

doorknob).

Because William did not establish that he was seized as required for a Fourth 

Amendment violation, his excessive force claim is then subject to a substantive due 

process analysis. See Gottlieb, 272 F.3d at 171–72. William argues that he alleged 

sufficient facts to satisfy the shocks the conscience standard.

2

 (Appellants’ Br. 18.) Our 

decision in Gottlieb shows that under this standard, the burden on a plaintiff is quite high. 

There, we held that a teacher shoving a student into a doorjamb did not rise to the level of 

conscience shocking behavior despite the student’s alleged chronic pains following the 

incident. Gottlieb, 272 F.3d at 175. Similarly, in Cummings v. McIntire, 271 F.3d 341 

(1st Cir. 2001), the First Circuit did not find conscience shocking behavior when a police 

officer, who was directing traffic, pushed the appellant and yelled at him, resulting in the 

appellant suffering a stabbing pain and permanent injury. Cummings, 271 F.3d at 346–

47.

 

2 The parties do not dispute the existence of the first two elements of the 

substantive due process claim: 1) action under color of state law and 2) the presence of a 

liberty interest. Even if these elements were challenged, our case law supports a finding 

of these elements. Regarding the element of acting under color of state law, because 

Tomi was working as a Uniontown meter maid, she was acting under color of state law. 

See Angelico v. Lehigh Valley Hosp., Inc., 184 F.3d 268, 277 (3d Cir. 1999) (citations 

omitted) (finding that a person may be found a state actor when she is a state official, 

obtains significant aid from state officials or her actions are chargeable to the state). As 

to the protected interest element, William alleges violation of his Fourth Amendment 

right to be free from excessive force, which is encompassed in the firmly established 

liberty interest in one’s bodily integrity. See Planned Parenthood of Se. Pa. v. Casey, 

505 U.S. 833, 847–49 (1992) (citations omitted).
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William alleges that Tomi struck him once in the back with a closed fist. 

Accepting this allegation as true, Tomi’s response to William mounting his motorcycle, 

while inappropriate, does not rise to conscience shocking behavior. Moreover, William 

has not alleged any ongoing pain or injury. Here, Tomi’s action is more akin to the 

actions of appellees in Gottlieb and Cummings. Accordingly, we will affirm the District 

Court’s dismissal of Appellant William Ashton’s excessive force claims under the Fourth 

and Fourteenth Amendments.

C. Federal Civil Conspiracy Claims

Appellants also argue the District Court erred in dismissing their federal civil 

conspiracy claim pursuant to 42 U.S.C § 1983. 

“In order to prevail on a conspiracy claim under § 1983, a plaintiff must prove that 

persons acting under color of state law conspired to deprive him of a federal protected 

right.” Ridgewood Bd. of Educ. v. N.E. ex rel. M.E., 172 F.3d 238, 254 (3d Cir. 1999), 

superseded by statute on other grounds as stated in P.P. v. West Chester Area Sch. Dist., 

585 F.3d 727, 730 (3d Cir. 2009).

To satisfy these elements at the motion to dismiss stage, Federal Rule of Civil 

Procedure 8(a)(2) requires “a short and plain statement of the claim showing that the 

pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). We do not subject conspiracy 

claims to a heightened standard of pleading. See Jones v. Bock, 549 U.S. 199, 224 

(2007). However, the complaint must provide some factual basis to support a claim. See 

Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009). After Iqbal, it is clear that “threadbare 

recitals of the elements of a cause of action, supported by mere conclusory statements” 
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are insufficient to defeat a Rule 12(b)(6) motion to dismiss. Id. at 1949; see also Bell Atl.

Corp. v. Twombly, 550 U.S. 544, 555–56 (2007). Accepting Appellants’ allegations as 

true, Appellants fail to meet this standard.

Here, Appellants’ Amended Complaint does not explicitly plead a § 1983 civil 

conspiracy claim. (See App. II 16–22.) Instead, a federal conspiracy claim may be 

gleaned from one sentence in the Amended Complaint: “The actions of all the 

Defendants, acting in concert and conspiracy, as outlined herein, amount to an abuse of 

official power that shocks the conscience.” (App. II 22 ¶ 83.) Appellants’ conspiracy 

claim brought under 42 U.S.C. § 1983 fails because the Amended Complaint is devoid of 

any factual allegation showing an agreement or concerted activity by Tomi, Cox or 

Mayor Fike, a necessary element of a conspiracy claim. At best, the allegations show 

that the three Defendants acted independently of each other. No inference of an 

agreement arises from the facts. Furthermore, since we have concluded that the federal 

civil rights claims which are the object of the conspiracy must be dismissed, the alleged 

conspiracy to violate federal civil rights must also be dismissed because no federally 

protected right exists that is the object of the conspiracy. Thus, one element of a 

conspiracy cause of action has not been satisfied. Accordingly, we cannot conclude that 

the District Court erred in dismissing the civil conspiracy claim arising under § 1983.

D. Supplemental Jurisdiction over Appellants’ State Claims

Further, the District Court correctly refused to exercise supplemental jurisdiction 

over the state civil conspiracy claim and remaining state law claims. “[W]here the claim 

over which the district court has original jurisdiction is dismissed before trial, the district 
12

court must decline to decide the pendent state claims unless considerations of judicial 

economy, convenience, and fairness to the parties provide an affirmative justification for 

doing so.” Borough of W. Mifflin v. Lancaster, 45 F.3d 780, 788 (3d Cir. 1995).

Here, original jurisdiction is based on Appellants’ First Amendment retaliation, 

excessive force under the Fourth and Fourteenth Amendments, and federal civil 

conspiracy claims, which were properly dismissed before trial. Appellants have not 

alleged facts showing that judicial economy, convenience and fairness to the parties 

would warrant the state law claims remaining in federal court. Accordingly, the District 

Court did not err in declining to exercise supplemental jurisdiction over them.

IV.

For the foregoing reasons, we will affirm the District Court’s order.