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UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF PENNSYLVANIA

JONATHAN ALLY, Plaintiff v. SARAH FANUS, et al., Defendants

) CIVIL ACTION NO. 1:19-CV-0357) ) (CONNER, C.J.) ) ) (ARBUCKLE, M.J.) ) )

REPORT & RECOMMENDATION School Defendants’ Motion to Dismiss (Doc. 18)

I. INTRODUCTION

On March 1, 2019, Jonathan Ally (“Plaintiff”) initiated the above-captioned

civil rights action against the following seven (7) Defendants after being served a

“trespass notice” barring him from attending Camp Hill School District events:

(1) Sarah Fanus, athletic director;

(2) Mark Ziegler (school principal);

(3) Officer Capers, Camp Hill Police Department;

(4) Officer Tate, Camp Hill Police Department;

(5) Officer Harris, Camp Hill Police Department;

(6) the Camp Hill Police Department; and

(7) the Camp Hill School District.

On June 6, 2019, Defendants Camp Hill School District, Sarah Fanus, and

Mark Ziegler (collectively “School Defendants”) filed a Motion to Dismiss

Plaintiff’s Complaint. (Doc. 18). Along with their Motion, Defendants filed a Brief

Case 1:19-cv-00357-CCC Document 35 Filed 12/16/19 Page 1 of 25

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in Support. (Doc. 19). Plaintiff did not file a brief in opposition to the School

Defendants’ Motion within the prescribed period of time. See L.R. 7.6 (requiring

that a brief in opposition be filed within fourteen days); (see also Doc. 4) (advising

Plaintiff of his responsibility to respond to motions filed by opposing parties). On

June 24, 2019, the Court issued an Order directing Plaintiff to file a brief in

opposition and granted him an extension of time to do so sua sponte. (Doc. 22). To

date, Plaintiff has not filed a brief in opposition to the School Defendants’ Motion

to Dismiss.

Accordingly, IT IS RECOMMENDED that:

(1) The School Defendants’ Motion (Doc. 18) be DEEMED UNOPPOSED and GRANTED as Meritorious pursuant to L.R. 7.6; or in the alternative,

(2) Plaintiff’s claims against the School Defendants be DISMISSED pursuant to Fed. R. Civ. P. 41(b) due to Plaintiff’s failure to respond to the pending Motion to Dismiss.

II. BACKGROUND & PROCEDURAL HISTORY

In his Complaint, Plaintiff alleges:

On February 1st, 2019, I was invited to a basketball game by a parent of a basketball player to my former high school. After the game, I was asked to attend a senior recognition night event in the cafeteria by another parent of a player. Sarah Fanus, athletic director, asked me to leave the event even though I told her that I was invited, she was being rude and domineering. A week later, February 8th, 2019, I spoke to the police and was sent a “trespass notice.” Mark Ziegler has not answered by calls for over two weeks nor has officer Capers who has refused to investigate my complaints.


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(Doc. 1, p. 2). Attached to the Complaint is a page with the title “Additional

Information” in which Plaintiff alleges:

In summer of 2018, I reported harassment by a Camp Hill Pool lifeguard named Bridget Seitz. Officer Harris took the report as laughable stating multiple times in multiple incidents that I am a 30 year old man, why am I reporting a teenage girl. He refused to investigate my alleged harassment, a violating of my 14th amendment right. This is also defamation because Bridget Seitz made negative statements about me that harmed my reputation. Anya Patterson received the messages and showed them to me. Later on she (Anya) was depressed and showed me photos of her cutting her wrist. People were mad at Anya and she inflicted harm upon herself, simply because she showed me evidence that I could use against Bridget.

(Doc. 1, p. 3).1 Plaintiff wrote that he wishes to file a complaint under

“Constitutional Amendment 14th; equal protection clause; 18 US Code S.S. 1038

(false information).” (Doc. 1, p. 1). As relief he requests:

The trespass notice be removed and plaintiff be awarded $1,000,000 in damages. And false reports charges are filed against Mark Zeigler and Sarah Fanus. Police Dept. and officers must be held accountable for violation of 14th amendment.

(Doc. 1, p. 2).

On the same day he filed his Complaint, the Court sent Plaintiff a copy of its

Standing Practice Order in Pro Se Plaintiff Cases, 94-2. (Doc. 4). This Order,

intended to inform pro se parties of their briefing and other responsibilities,

explains that, if a party files a motion with a brief in support:

1 Plaintiff did not name Bridget Seitz, the teenaged lifeguard, as a party in his Complaint. Therefore, I do not construe the Complaint as alleging any claims against Ms. Seitz.


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Local Rule 7.6 provides that the party against whom the motion and brief have been filed must file a brief in opposition to the moving party’s motion, together with any opposing evidentiary material, such as affidavits, deposition transcripts, or other documents, within fourteen (14) days after service of the moving party’s brief on the opposing party.

If the party opposing the motion does not file his or her brief and any evidentiary material within the 14-day time frame, Local Rule 7.6 provides that he or she shall be deemed not to oppose the moving party’s motion. The motion may therefore be granted if: (1) the court finds it meritorious; or (2) the opposing party fails to comply with Local Rule 7.6 despite being ordered to do so by the court.

(Doc. 4, pp. 2).

On June 6, 2019, the School Defendants filed a Motion to Dismiss with a

Brief in Support. (Docs. 18, 19). On the same day, the Court issued an Order

advising Plaintiff that he was required to file a brief in opposition on or before June

21, 2019. (Doc. 20). That deadline passed and Plaintiff did not file a brief in

opposition. On June 24, 2019, the Court issued an Order specifically directing

Plaintiff to file a brief in opposition and advising him that his claims against the

School Defendants may be dismissed if he failed to file a brief in opposition by

July 24, 2019. (Doc. 22). Plaintiff did not file a brief in opposition.

III. LEGAL STANDARD

A motion to dismiss tests the legal sufficiency of a complaint. It is proper for

the court to dismiss a complaint in accordance with Rule 12(b)(6) of the Federal

Rules of Civil Procedure only if the complaint fails to state a claim upon which


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relief can be granted. Fed. R. Civ. P. 12(b)(6). When reviewing a motion to

dismiss, the court “must accept all factual allegations in the complaint as true,

construe the complaint in the light favorable to the plaintiff, and ultimately

determine whether plaintiff may be entitled to relief under any reasonable reading

of the complaint.” Mayer v. Belichick, 605 F.3d 223, 229 (3d Cir. 2010). In

reviewing a motion to dismiss, a court must “consider only the complaint, exhibits

attached to the complaint, matters of public record, as well as undisputedly

authentic documents if the [plaintiff's] claims are based upon these documents.” Id.

at 230.

In deciding whether a complaint fails to state a claim upon which relief can

be granted, the court is required to accept as true all factual allegations in the

complaint as well as all reasonable inferences that can be drawn from the

complaint. Jordan v. Fox Rothschild, O'Brien & Frankel, Inc., 20 F.3d 1250, 1261

(3d Cir. 1994). These allegations and inferences are to be construed in the light

most favorable to the plaintiff. Id. However, the court “need not credit a

complaint's bald assertions or legal conclusions when deciding a motion to

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

Further, it is not proper to “assume that [the plaintiff] can prove facts that [he] has

not alleged . . . .” Associated Gen. Contractors of Cal. v. California State Council

of Carpenters, 459 U.S. 519, 526 (1983).


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Following the rule announced in Ashcroft v. Iqbal, “a pleading that offers

labels and conclusions or a formulaic recitation of the elements of a cause of action

will not do.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Rather, a complaint must

recite factual allegations enough to raise the plaintiff's claimed right to relief

beyond the level of mere speculation. Id. To determine the sufficiency of a

complaint under the pleading regime established by the Supreme Court, the court

must engage in a three-step analysis:

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.

Santiago v. Warminster Twp., 629 F.3d 121, 130 (3d Cir. 2010) (quoting Iqbal,

556 U.S. at 675, 679). "In other words, a complaint must do more than allege the

plaintiff's entitlement to relief" and instead must ‘show’ such an entitlement with

its facts.” Fowler v. UPMC Shadyside, 578 F.3d 203, 211 (3d Cir. 2009).

As the court of appeals has observed:

The Supreme Court in Twombly set forth the “plausibility” standard for overcoming a motion to dismiss and refined this approach in Iqbal. The plausibility standard requires the complaint to allege “enough facts to state a claim to relief that is plausible on its face.” Twombly, 550 U.S. at 570, 127 S.Ct. 1955. A complaint satisfies the plausibility standard when the factual pleadings “allow[ ] the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 129 S.Ct. at 1949 (citing Twombly, 550 U.S. at 556, 127 S.Ct. 1955). This standard requires showing “more than a sheer


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possibility that a defendant has acted unlawfully.” Id. A complaint which pleads facts “merely consistent with” a defendant's liability, [ ] “stops short of the line between possibility and plausibility of ‘entitlement of relief.’” Id. (citing Twombly, 550 U.S. at 557, 127 S.Ct. 1955).

Burtch v. Milberg Factors, Inc., 662 F.3d 212, 220-21 (3d Cir. 2011).

In undertaking this task, the court generally relies only on the complaint,

attached exhibits, and matters of public record. Sands v. McCormick, 502 F.3d 263,

268 (3d Cir. 2007). The court may also consider “undisputedly authentic

document[s] that a defendant attached as an exhibit to a motion to dismiss if the

plaintiff’s claims are based on the [attached] documents.” Pension Benefit Guar.

Corp. v. White Consol. Indus., 998 F.2d 1192, 1196 (3d Cir. 1993). Moreover,

“documents whose contents are alleged in the complaint and whose authenticity no

party questions, but which are not physically attached to the pleading, may be

considered.” Pryor v. Nat’l Collegiate Athletic Ass’n, 288 F.3d 548, 560 (3d Cir.

2002); see also, U.S. Express Lines, Ltd. v. Higgins, 281 F.3d 382, 388 (3d Cir.

2002) (holding that “[a]lthough a district court may not consider matters

extraneous to the pleadings, a document integral to or explicitly relied upon in the

complaint may be considered without converting the motion to dismiss in one for

summary judgment.”) However, the court may not rely on other parts of the record

in determining a motion to dismiss. Jordan v. Fox, Rothschild, O’Brien &Frankel,

20 F.3d 1250, 1261 (3d Cir. 1994).


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IV. DISCUSSION

A. THE SCHOOL DEFENDANTS’ MOTION TO DISMISS SHOULD BE DEEMED

UNOPPOSED AND GRANTED AS MERITORIOUS PURSUANT TO L.R. 7.6

At the outset, under the Local Rules of this Court, Plaintiff should be

deemed not to oppose the pending motion to dismiss since he has failed to timely

oppose that motion.

Local Rule 7.6 imposes an affirmative duty on a litigant to respond to

motions and provides that “[a]ny party who fails to comply with this rule shall be

deemed not to oppose such motion.” At the time that he filed his complaint,

Plaintiff received a copy of the Court’s Standing Practice Order, which set forth his

obligations with respect to responding to a motion. (Doc. 4). Further, this Court has

issued two orders—first on June 6, 2019 (Doc. 20), and second on June 24, 2019

(Doc. 22)—directing Plaintiff to file a Brief in Opposition to the School

Defendants’ Motion to Dismiss. Despite receiving this direction from the Court,

Plaintiff has failed to file a brief in opposition.

Plaintiff has not complied with Local Rule 7.6 or this Court’s orders to file a

brief in opposition to the motion to dismiss. These procedural defaults compel the

Court to consider the basic truth that it:

must remain mindful of the fact that “the Federal Rules are meant to be applied in such a way as to promote justice. See Fed. R. Civ. P. 1. Often that will mean that courts should strive to resolve cases on their merits whenever possible. However, justice also requires that the


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merits of a particular dispute be placed before the court in a timely fashion. . . .”

Lease v. Fishel, 712 F.Supp.2d 359, 371 (M.D. Pa. 2010) (quoting McCurdy v.

American Bd. of Plastic Surgery, 157 F.3d 191, 197 (3d Cir. 1998)). With this

basic truth in mind, the Court acknowledges a fundamental guiding tenet of our

legal system. A failure on the Court’s part to enforce compliance with the rules,

and impose the sanctions mandated by those rules when the rules are repeatedly

breached, “would actually violate the dual mandate which guides this court and

motivates our system of justice: ‘that courts should strive to resolve cases on their

merits whenever possible [but that] justice also requires that the merits of a

particular dispute be placed before the court in a timely fashion.’” Id. Therefore,

the Court is obliged to ensure that one party’s refusal to comply with the rules does

not lead to an unjustified prejudice to those parties who follow the rules.

Such basic principles of fairness apply here. Plaintiff has failed to comply

with Local Rule 7.6. He failed to file a brief in opposition to the School

Defendants’ pending Motion to Dismiss (Doc. 18) after being ordered to do so

twice and after being warned that a failure to file a brief in opposition may be

construed as him abandoning this case. These failures now compel the Court to

recommend that Plaintiff be deemed to not oppose the School Defendants’ pending

Motion to Dismiss (Doc. 18) and grant that motion as unopposed. See Sections C,


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D, and E of this Report and Recommendation for a discussion of the merits of the

Motion to Dismiss.

B. PLAINTIFF’S CLAIMS AGAINST THE SCHOOL DEFENDANTS SHOULD BE

DISMISSED PURSUANT TO FED. R. CIV. P. 41(B)

Rule 41(b) of the Federal Rules of Civil Procedure authorizes a court to

dismiss a civil action for failure to prosecute, stating that: “If the plaintiff fails to

prosecute or to comply with these rules or a court order, a defendant may move to

dismiss the action or any claim against it.” Fed. R. Civ. P. 41(b). Decisions

regarding dismissal of actions for failure to prosecute rest in the sound discretion

of the Court and will not be disturbed absent an abuse of that discretion. Emerson

v. Thiel College, 296 F.3d 184, 190 (3d Cir. 2002) (citations omitted). That

discretion, however, while broad is governed by certain factors, commonly referred

to as Poulis factors. As the United States Court of Appeals for the Third Circuit

has noted:

To determine whether the District Court abused its discretion [in dismissing a case for failure to prosecute], we evaluate its balancing of the following factors: (1) the extent of the party’s personal responsibility; (2) the prejudice to the adversary caused by the failure to meet scheduling orders and respond to discovery; (3) a history of dilatoriness; (4) whether the conduct of the party or the attorney was willful or in bad faith; (5) the effectiveness of sanctions other than dismissal, which entails an analysis of alternative sanctions; and (6) the meritoriousness of the claim or defense. Poulis v. State Farm Fire and Cas. Co., 747 F.2d 863, 868 (3d Cir. 1984).

Emerson, 296 F.3d at 190.


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In exercising this discretion “there is no ‘magic formula’ that [the Court

applies] to determine whether a District Court has abused its discretion in

dismissing for failure to prosecute.” Lopez v. Cousins, 435 F. App’x 113, 116 (3d

Cir. 2011) (quoting Briscoe v. Klaus, 538 F.3d 252 (3d Cir. 2008)). Therefore,

“[i]n balancing the Poulis factors, [courts] do not [employ] a . . . ‘mechanical

calculation’ to determine whether a District Court abused its discretion in

dismissing a plaintiff’s case.” Briscoe, 538 F.3d at 263 (quoting Mindek v. Rigatti,

964 F.2d 1369, 1373 (3d Cir. 1992)). Consistent with this view, it is well-settled

that “no single Poulis factor is dispositive,” and that “not all of the Poulis factors

need be satisfied in order to dismiss a complaint.” Briscoe, 538 F.3d at 263

(internal citations and quotations omitted). Moreover, recognizing the broad

discretion conferred upon the district court in making judgments weighing these

six factors, the court of appeals has frequently sustained such dismissal orders

where there has been a pattern of dilatory conduct by a pro se litigant who is not

amenable to any lesser sanction. See, e.g., Emerson, 296 F.3d 184; Tillio v.

Mendelsohn, 256 F. App’x 509 (3d Cir. 2007); Reshard v. Lankenau Hospital, 256

F. App’x 506 (3d Cir. 2007); Azubuko v. Bell National Organization, 243 F. App’x

728 (3d Cir. 2007).

The first Poulis factor—the extent of Plaintiff’s personal responsibility to

respond to the School Defendants’ Motion to Dismiss—weighs in favor of


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dismissal. A pro se litigant is personally responsible for failure to comply with the

Court’s rules and orders. As discussed above, when he initially filed this lawsuit,

Plaintiff was provided with a copy of the Court’s standing order in pro se cases

advising him of his briefing responsibilities. Furthermore, the Court ordered

Plaintiff to respond to the School Defendants’ Motion to Dismiss twice. Plaintiff

did not comply with these orders.

The second Poulis factor—the prejudice to the School Defendants that has

resulted from Plaintiff’s failure to respond—weighs in favor of dismissal.

Examples of prejudice are “the irretrievable loss of evidence, the inevitable

dimming of witnesses’ memories, or the excessive and possibly irremediable

burdens or costs imposed on the opposing party.” Scarborough v. Eubanks, 747

F.2d 871, 876 (3d Cir. 1984). Prejudice for purposes of the Poulis analysis,

however, does not mean irremediable harm. Ware v. Rodale Press, Inc., 322 F.3d

218, 222 (3d Cir, 2003). “[T]he burden imposed by impeding a party’s ability to

prepare effectively a full and complete trial strategy is sufficiently prejudicial.” Id.

Plaintiff’s failure to litigate this case, comply with court rules, and comply with

court orders frustrates and delays resolution of this action. This failure can be seen

to prejudice the School Defendants, who seek timely resolution of this case.

The third Poulis factor—Plaintiff’s history of dilatoriness—weighs in favor

of dismissal. While “conduct that occurs one or two times is insufficient to


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demonstrate a ‘history of dilatoriness,’” Briscoe, 538 F.3d at 261, “[e]xtensive or

repeated delay or delinquency constitutes a history of dilatoriness, such as

consistent non-response to interrogatories, or consistent tardiness in complying

with court orders.” Adams v. Trs. of N.J. Brewery Emps.’ Pension Trust Fund, 29

F.3d 863, 874 (3d Cir. 1994). A “party’s problematic acts must be evaluated in

light of [her] behavior over the life of the case.” Id. at 875. Although this Report

only addresses the motion to dismiss filed by the School Defendants, there are

actually two motions to dismiss pending in this case. Plaintiff has not responded to

either of them, despite being advised of his obligations as a pro se litigant—which

includes responding to motions—and being ordered to do so multiple times in

connection with two pending motions to dismiss. Furthermore, Plaintiff was also

warned that if he failed to file a brief in opposition to either of these motions, they

may be granted as unopposed. In sum, despite being given specific instruction,

Plaintiff has consistently failed to respond to pending motions and court orders.

The fourth Poulis factor—whether Plaintiff’s conduct is willful or in bad

faith—also weighs in favor of dismissal. “Willfulness involves intentional or self-

serving behavior.” Adams, 29 F.3d at 875. Plaintiff was ordered to file a brief in

opposition to the School Defendants’ Motion to Dismiss but did not do so. Not

only that, Plaintiff was ordered to file a brief in opposition to a second Motion to

Dismiss filed in this case. Moreover, he was warned of the possible consequences


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of failing to file a brief in opposition. Plaintiff’s repeated failure to comply with the

Court’s orders to respond to multiple pending dispositive motions leads to an

inference that he has willfully abandoned this case.

The fifth Poulis factor—the effectiveness of alternate sanctions—weighs in

favor of dismissal. Dismissal is a sanction of last resort, and it is incumbent upon a

court to explore the effectiveness of lesser sanctions before ordering dismissal.

Poulis, 747 F.2d at 868. Plaintiff is proceeding pro se and in forma pauperis. His

last known address was at a homeless shelter. There is no evidence to support a

reasonable inference that he would be able to pay monetary sanctions. Therefore,

monetary sanctions, including attorney’s fees and costs, would not be an effective

sanction in this case. Moreover, Plaintiff’s failure to comply with the Court’s

orders leads to an inference that further orders to him would not be effective. Thus,

I find that no sanction short of dismissal would be effective.

The sixth Poulis factor—the meritoriousness of Plaintiff’s claims—also

weighs in favor of dismissal. As discussed below Plaintiff has failed to plead

plausible claims from the violation of 18 U.S.C. § 1038, or the Fourteenth

Amendment.

C. PLAINTIFF HAS FAILED TO PLEAD A PLAUSIBLE CLAIM UNDER 18 U.S.C. § 1038

Section 1038(a) of Title 18 of the United States Code makes it a crime to

engage in conduct with the “intent too convey false or misleading information . . .


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.” Section 1038(b) of the same title provides for liability “in a civil action to any

party incurring expenses incident to any emergency or investigative response to

that conduct, for those expenses.” Specifically, 18 U.S.C. § 1038(b) provides that:

Whoever engages in any conduct with intent to convey false or misleading information under circumstances where such information may reasonably be believed and where such information indicates that an activity has taken, is taking, or will take place that would constitute a violation of chapter 2, 10, 11B, 39, 40, 44, 111, or 113B of this title, section 236 of the Atomic Energy Act of 1954 (42 U.S.C. 2284), or section 46502, the second sentence of section 46504, section 46505 (b)(3) or (c), section 46506 if homicide or attempted homicide is involved, or section 60123(b) of title 49 is liable in a civil action to any party incurring expenses incident to any emergency or investigative response to that conduct, for those expenses.

As explained in Wilkins v. Deutsche Bank Nat’l Trust Co.:

to seek damages in civil action, the conduct must constitute a violation of Chapter 2, 10, 11 B, 39, 40, 44, 111,or 113B of this title, which are, respectively, 18 U.S.C.A. § 31, et seq. (Aircraft and motor vehicles, Chapter 2), 18 U.S.C.A. § 175, et seq.(Biological weapons, Chapter 10), 18 U.S.C.A. § 229, et seq. (Chemical weapons, chapter 11 B), 18 U.S.C.A. § 831, et seq. (Explosives and combustibles, Chapter 39), 18 U.S.C.A. § 841, et seq. (Importation, manufacture, distribution and storage of explosive materials, Chapter 40), 18 U.S.C.A. § 921, et seq. (Firearms, Chapter 44), 18 U.S.C.A. § 2271, et seq. (Shipping, Chapter 111), or 18 U.S.C.A. §2331, et seq. (Terrorism, Chapter 113B). Section 1038 “was designed to deal with criminal or terrorist hoaxes, and not with the issue asserted by Plaintiff.” Manuel v. United States, 78 Fed. Cl. 31, 35 (Fed. Cl. 2007), citing United States v. Davila, 461 F.3d 298, 304 (2d. Cir. 2006) (finding that Congress, in passing Section 1038, sought to address potential limitations in the existing law with respect to criminal hoaxes and terrorist threats); United States v. Evans, 478 F.3d 1332, 1344 (11th Cir. 2007) (referencing § 1038 as a criminal statute designed to prosecute those criminal and terrorist threats such as “sending an anthrax hoax letter.”). While § 1038(b) does provide for a civil remedy, it must


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necessarily be related to criminal activity as listed within the statute. Manuel, 78 Fed. Cl. at 35.

No. 4:12-CV-145-RH/CAS, 2012 WL 1890456 at *2 (N.D. Fla. Apr. 30, 2012)

report and recommendation adopted by 2012 WL 1886441 (N.D. Fla. May 21,

2012). Plaintiff’s allegations against the School Defendants include that he was

asked to leave an event, and that he placed calls to one of the Defendants that were

not returned. Although § 1038(b) does provide a civil remedy in some cases,

Plaintiff’s allegations against the School Defendants are not related to any of the

criminal activity identified in this statute. Accordingly, I find that Plaintiff fails to

state a claim against the School Defendants under § 1038(b).

D. DEFENDANTS FANUS AND ZEIGLER ARE ENTITLED TO QUALIFIED

IMMUNITY

The School Defendants argue that Defendants Fanus and Ziegler are entitled

to qualified immunity with respect to Plaintiff’s Fourteenth Amendment equal

protection claim because has not alleged enough facts to show that his rights were

violated. (Doc. 19, pp. 18-22).

Despite their participation in constitutionally impermissible conduct,

government officials “may nevertheless be shielded from liability for civil

damages if their actions did not violate ‘clearly established statutory or

constitutional rights of which a reasonable person would have known.’” Hope v.

Pelzer, 536 U.S. 730, 739 (2002) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818


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(1982)). Qualified immunity operates to ensure that, before they are subjected to

suit, officers are on notice that their conduct is unlawful. Id. “Qualified immunity

balances two important interests—the need to hold public officials accountable

when they exercise power irresponsibly and the need to shield officials from

harassment, distraction, and liability when they perform their duties reasonably.”

Pearson v. Callahan, 555 U.S. 223, 231 (2009). “If the law was clearly

established, the immunity defense ordinarily should fail, since a reasonably

competent public official should know the law governing his conduct.” Harlow,

457 U.S. at 818-19.

The qualified immunity analysis has two prongs. Pearson, 555 U.S. at 232.

One prong of the analysis is whether the facts that the plaintiff has alleged or

shown make out a violation of a constitutional right. Id. The other prong of the

analysis is whether the right was clearly established. Saucier v. Katz, 533 U.S. 194,

201 (2001). The court is permitted to exercise its discretion in deciding which of

the two prongs of the qualified-immunity analysis should be addressed first in light

of the circumstances of the particular case. Pearson, 555 U.S. at 236. So it may

forego difficult constitutional issues and award qualified immunity to a defendant

if it is apparent that the defendant did not violate rights that were clearly

established at the time the defendant acted. Id.


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In this case, I will first address whether Plaintiff has alleged enough facts to

support his claim that his Fourteenth Amendment rights were violated by

Defendants Fanus and Ziegler. For the reasons explained herein, I find that he has

not, and therefore Defendants Fanus and Ziegler are entitled to qualified immunity.

In his Complaint, Plaintiff alleged that he wished to file his Complaint under

“Constitutional Amendment 14th; equal protection clause.” Thus, I construe the

Complaint as alleging a Fourteenth Amendment equal protection claim under 42

U.S.C. § 1983 against the School Defendants.

Plaintiff’s Fourteenth Amendment equal protection claim is brought under

42 U.S.C. § 1983. “Section 1983 imposes civil liability upon any person who,

acting under the color of state law, deprives another individual of any rights,

privileges, or immunities secured by the Constitution or laws of the United States.”

Shuman v. Penn Manor School Dist., 422 F.3d 141, 146 (3d Cir. 2005). “It is well

settled that § 1983 does not confer any substantive rights, but merely ‘provides a

method for vindicating federal rights elsewhere conferred.’” Williams v.

Pennsylvania Human Relations Comm'n, 870 F.3d 294, 297 (3d Cir. 2017)

(quoting Hildebrand v. Allegheny Cty., 757 F.3d 99, 104 (3d Cir. 2014)). To

establish a claim under § 1983, Plaintiff must establish a deprivation of a federally

protected right and that this deprivation was committed by a person acting under


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color of state law. Woloszyn v. County of Lawrence, 396 F.3d 314, 319 (3d Cir.

2005).

The Equal Protection Clause directs that all similarly situated individuals be

treated alike. City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439 (1985).

Two independent legal theories exist upon which a plaintiff may predicate an equal

protection claim: the traditional theory and the class-of-one theory. Plaintiff

appears to be alleging a class of one theory.

Under the traditional theory, “[t]o prevail on its equal protection claim, [a

plaintiff] must show that the Government has treated it differently from a similarly

situated party and that the Government’s explanation for the differing treatment

does not satisfy the relevant level of scrutiny.” Real Alternatives, Inc. v. Sec’y

Dep’t of Health & Human Servs., 867 F.3d 338, 348 (3d Cir. 2017). Under the

traditional theory a plaintiff “must prove the existence of purposeful

discrimination” by the defendant. Keenan v. City of Phila., 983 F.2d 459, 465 (3d

Cir. 1992).

Under the class-of-one theory, a plaintiff may advance an equal protection

claim absent membership in a protected class if the plaintiff shows that the

defendants engaged in irrational and intentional differential treatment of him when

compared with similarly situated individuals. See Village of Willowbrook v. Olech,

528 U.S. 562, 564 (2000). This theory allows a plaintiff to assert an equal


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protection claim regardless of protected class when the government irrationally

treats the plaintiff differently from similarly situated individuals. Id. at 564; Hill v.

Borough of Kutztown, 455 F.3d 225, 239 (3d Cir. 2006). To prevail on a class-of-

one claim, the plaintiff must demonstrate that: (1) the defendants treated him

differently from others similarly situated; (2) the defendants did so intentionally;

and, (3) there was no rational basis for the difference in treatment. Hill, 455 F.3d at

239.

“To succeed under either theory, [the plaintiff] must demonstrate that it was

treated differently from other similarly situated entities.” Rouse v. City of

Pittsburgh, No. 17-2587, 2018 WL 1448671, at *3 (3d Cir. Mar. 23, 2018) (citing

Hill v. City of Scranton, 411 F.3d 118, 125 (3d Cir. 2005) (selective enforcement);

Hill v. Borough of Kutztown, 455 F.3d 225, 239 (3d Cir. 2006) (class of one)).

“Persons are similarly situated under the Equal Protection Clause when they are

alike ‘in all relevant aspects.’” Startzell v. City of Philadelphia, 533 F.3d 183, 203

(3d Cir. 2008) (quoting Nordlinger v. Hahn, 505 U.S. 1, 10 (1992)). “[A] plaintiff

need not ‘identify in a complaint actual instances where others have been treated

differently.’” McLaughlin v. Forty Fort Borough, 64 F.Supp. 3d 631, 647 (M.D.

Pa. 2014) (quoting Phillips v. Cnty. of Allegheny, 515 F. 3d 224, 244 (3d Cir.

2008)). Rather, “[g]eneral allegations that a plaintiff was treated differently from

others similarly situated are sufficient.” Shkedi v. City of Scranton, No. 3:CV-14-


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2069, 2015 WL 1505660, at *10 (M.D. Pa. Apr. 1, 2015). In his Complaint,

Plaintiff alleges that Defendant Fanus, the school athletic director, asked him to

leave a senior recognition night event held in the school cafeteria. He also alleges

that he called Defendant Ziegler, the school principal, but did not receive a

response after waiting two weeks. Plaintiff does not provide even general

allegations that Defendant Fanus or Defendant Ziegler treated him differently from

other similarly situated people. Therefore, he has not alleged enough facts to

support a plausible Fourteenth Amendment equal protection claim, which entitles

the School Defendants to qualified immuity.

E. PLAINTIFF’S CLAIMS AGAINST THE SCHOOL DISTRICT SHOULD BE

DISMISSED

The School Defendants argue, that to the extent Plaintiff is attempting to

assert a Monell claim against the Camp Hill School District, it should be dismissed.

(Doc. 19, pp. 22-23).

Since Plaintiff names the Camp Hill School District as a Defendant and

alleges that it violated his constitutional rights, the standards annunciated in Monell

v. Department of Soc. Servs., 436 U.S. 658, 691 (1978) apply to the equal

protection claim asserted against the School District. See McGreevy v. Stroup, 413

F.3d 359, 367–69 (3d Cir. 2005) (school district is subject to liability in a § 1983

action under Monell). A municipality cannot be held liable for the unconstitutional

acts of its employees on a theory of respondeat superior. Monell, 436 U.S. at 691.


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Rather, “under § 1983, local governments are responsible only for ‘their own

illegal acts.’” Connick v. Thompson, 563 U.S. 51, 60 (2011) (quoting Pembaur v.

City of Cincinnati, 475 U.S. 469, 479 (1986) (emphasis in original). To state a

claim against a municipality, Plaintiff must allege that the violation of his rights

was caused either by a policy or by a custom of the municipality. Monell, 436 U.S.

at 694; Berg v. County of Allegheny, 219 F.3d 261, 275 (3d Cir. 2000). Municipal

policies include the decisions of a government’s lawmakers and the acts of its

policymaking officials as well as municipal customs, which are acts or practices

that, even though not formally approved by an appropriate decision maker, are so

persistent and widespread as to have the force of law. Id.; Natale v. Camden Cty.

Corr. Facility, 318 F.3d 575, 583 (3d Cir. 2003). In other words, a municipality

“‘can be held responsible as an entity when the injury inflicted is permitted under

its adopted policy or custom.’” Mulholland v Gov’t County of Berks, 706 F.3d 227,

237 (3d Cir. 2013) (quoting Beck v. City of Pittsburgh, 89 F.3d 966, 971 (3d Cir.

1996)).

A policy or custom can be shown in any of four ways:

(1) the existence of a formal policy, officially promulgated or adopted by a municipality; Monell, 436 U.S. at 690; or (2) that an official or officials responsible for establishing final policy with respect to the subject matter in question took action or made a deliberate, specific decision that caused the alleged violation of plaintiff's constitutional rights, Pembaur v. City of Cincinnati, 475 U.S. 469, 483-84 (1986) (citation omitted); or (3) the existence of an unlawful practice by subordinate


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officials so permanent and well settled as to constitute “custom or usage” and proof that this practice was so manifest or widespread as to imply the constructive acquiescence of policymaking officials, City of St. Louis v. Praprotnik, 485 U.S. 112, 127-30 (1989); or (4) if liability is based on a claim of failure to train or supervise, that “the failure to train amounts to deliberate indifference to the rights of persons with whom . . . [municipal employees] came into contact.” City of Canton v. Harris, 489 U.S. 378, 388 (1989).

Nye v. Cumberland Cty., No. 1:14-CV-713, 2016 WL 695109, at *4 (M.D. Pa. Feb.

19, 2016).

“To satisfy the pleading standard, [a plaintiff] must identify a custom or

policy, and specify what exactly that custom or policy was.” McTernan v. City of

York, 564 F.3d 636, 658 (3d Cir. 2009). Additionally, there must be a direct causal

link between the policy or custom and the alleged constitutional violation. City of

Canton v. Harris, 489 U.S. 378, 385 (1989).

Here, Plaintiff has not identified any school custom or policy in his

Complaint. Instead, he simply seeks to hold the School liable for the allegedly

unconstitutional acts of two of its administrators. As discussed above, the school

district cannot be held liable under § 1983 based on respondeat superior.

Accordingly, I recommend that Plaintiff’s claims against the Camp Hill School

District be dismissed.


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V. RECOMMENDATION

IT IS RECOMMENDED THAT:

(1) The School Defendants’ Motion to Dismiss (Doc. 18) be deemed unopposed and granted as meritorious pursuant to L.R. 7.6; or in the alternative

(2) Plaintiff’s Complaint (Doc. 1) be dismissed pursuant to Rule 41(b) of the Federal Rules of Civil Procedure for failure to prosecute.

Date: December 16, 2019 BY THE COURT

s/William I. Arbuckle William I. Arbuckle U.S. Magistrate Judge


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UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF PENNSYLVANIA

JONATHAN ALLY, Plaintiff v. SARAH FANUS, et al., Defendants

) CIVIL ACTION NO. 1:19-CV-0357) ) (CONNER, C.J.) ) ) (ARBUCKLE, M.J.) ) )

NOTICE OF RIGHT TO OBJECT

NOTICE IS HEREBY GIVEN that any party may obtain a review of the

Report and Recommendation pursuant to Local Rule 72.3, which provides:

Any party may object to a magistrate judge’s proposed findings, recommendations or report addressing a motion or matter described in 28 U.S.C. § 636 (b)(1)(B) or making a recommendation for the disposition of a prisoner case or a habeas corpus petition within fourteen (14) days after being served with a copy thereof. Such party shall file with the clerk of court, and serve on the magistrate judge and all parties, written objections which shall specifically identify the portions of the proposed findings, recommendations or report to which objection is made and the basis for such objections. The briefing requirements set forth in Local Rule 72.2 shall apply. A judge shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made and may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge. The judge, however, need conduct a new hearing only in his or her discretion or where required by law, and may consider the record developed before the magistrate judge, making his or her own determination on the basis of that record. The judge may also receive further evidence, recall witnesses, or recommit the matter to the magistrate judge with instructions.

Date: December 16, 2019 BY THE COURT

s/William I. Arbuckle William I. Arbuckle U.S. Magistrate Judge
