Opinion
Civil Action 3:22-cv-00237
02-09-2023
CHRISTOPHER ZOMERFELD, Plaintiff, v. KINGSTON TWP. POLICE, et al., Defendants.
MARIANI, J.
REPORT AND RECOMMENDATION
JOSEPH F. SAPORITO, JR. UNITED STATES MAGISTRATE JUDGE
This federal civil rights action commenced when the plaintiff, Christopher Zomerfeld, lodged his pro se complaint with the clerk for filing on February 17, 2022, together with an application for leave to proceed in forma pauperis. (Doc. 1; Doc. 2.) On February 22, 2022, the plaintiff was granted leave to proceed in forma pauperis, and the complaint was deemed filed. (Doc. 5.)
The defendants have appeared through counsel. On March 24, 2022, they moved to dismiss the action for failure to state a claim upon which relief can be granted. (Doc. 17.) They filed a brief in support of their motion that same today, together with several supporting documentary exhibits. (Doc. 18; Doc. 19.)
The defendants include: the municipality of Kingston Township, Pennsylvania; the Kingston Township police; Kathleen J. Sebastian, the township manager; the unidentified township solicitor; and the unidentified township supervisors.
Because the defendants' Rule 12(b)(6) motion relied extensively on materials outside the pleadings, we entered an order on March 25, 2022, treating the defendants' motion also as a Rule 56 motion for summary judgment. (Doc. 20.) Pursuant to our order, on March 30, 2022, the defendants filed a Local Rule 56.1 statement of undisputed material facts, together with an appendix of exhibits in support of their summary judgment motion. (Doc. 22; Doc. 23.)
Despite a sua sponte extension of time, the plaintiff has failed to file any response to the defendants' summary judgment motion and supporting papers.(Doc. 24.) Thus, the defendants' motion to dismiss or for summary judgment is now ripe for decision.
On September 15, 2022, the plaintiff filed a pro se demand for a jury trial, which was not responsive to the defendants' motion papers. (Doc. 25.) He has filed nothing else in this case.
I. Legal Standards
A. Rule 12(b)(6) Dismissal Standard
Rule 12(b)(6) of the Federal Rules of Civil Procedure authorizes a defendant to move to dismiss for “failure to state a claim upon which relief can be granted.” Fed.R.Civ.P. 12(b)(6). Although a plaintiff is entitled to notice and an opportunity to respond to a motion to dismiss, he has no obligation to do so-he may opt to stand on the pleadings rather than file an opposition. The Court must nevertheless examine the complaint and determine whether it states a claim as a matter of law. Stackhouse v. Mazurkiewicz, 951 F.2d 29, 30 (3d Cir. 1991); Anchorage Assocs. v. Virgin Islands Bd. of Tax Review, 922 F.2d 168, 174 (3d Cir. 1990).
“Under Rule 12(b)(6), a motion to dismiss may be granted only if, accepting all well-pleaded allegations in the complaint as true and viewing them in the light most favorable to the plaintiff, a court finds the plaintiff's claims lack facial plausibility.” Warren Gen. Hosp. v. Amgen Inc., 643 F.3d 77, 84 (3d Cir. 2011) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-56 (2007)). In deciding the motion, the Court may consider the facts alleged on the face of the complaint, as well as “documents incorporated into the complaint by reference, and matters of which a court may take judicial notice.” Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322 (2007). Although the Court must accept the fact allegations in the complaint as true, it is not compelled to accept “unsupported conclusions and unwarranted inferences, or a legal conclusion couched as a factual allegation.” Morrow v. Balaski, 719 F.3d 160, 165 (3d Cir. 2013) (quoting Baraka v. McGreevey, 481 F.3d 187, 195 (3d Cir. 2007)). Nor is it required to credit factual allegations contradicted by indisputably authentic documents on which the complaint relies or matters of public record of which we may take judicial notice. In re Washington Mut. Inc., 741 Fed. App'x 88, 91 n.3 (3d Cir. 2018); Sourovelis v. City of Philadelphia, 246 F.Supp.3d 1058, 1075 (E.D. Pa. 2017); Banks v. Cty. of Allegheny, 568 F.Supp.2d 579, 588-89 (W.D. Pa. 2008).
B. Sua Sponte Dismissal Standard
A plaintiff proceeding in forma pauperis is subject to 28 U.S.C. § 1915(e)(2), which provides that a court “shall dismiss the case at any time if the court determines that . . . the action . . . fails to state a claim on which relief may be granted.” 28 U.S.C. § 1915(e)(2)(B)(ii). “The legal standard for dismissing a complaint for failure to state a claim under § 1915(e)(2) is the same as that for dismissing a complaint pursuant to Fed.R.Civ.P. 12(b)(6).” Brodzki v. Tribune Co., 481 Fed. App'x 705, 706 (3d Cir. 2012) (per curiam).
C. Rule 56 Summary Judgment Standard
Under Rule 56 of the Federal Rules of Civil Procedure, summary judgment should be granted only if “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). A fact is “material” only if it might affect the outcome of the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute of material fact is “genuine” only if the evidence “is such that a reasonable jury could return a verdict for the non-moving party.” Anderson, 477 U.S. at 248. In deciding a summary judgment motion, all inferences “should be drawn in the light most favorable to the nonmoving party, and where the non-moving party's evidence contradicts the movant's, then the non-movant's must be taken as true.” Pastore v. Bell Tel. Co. of Pa., 24 F.3d 508, 512 (3d Cir. 1994).
The party seeking summary judgment “bears the initial responsibility of informing the district court of the basis for its motion,” and demonstrating the absence of a genuine dispute of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). If the movant makes such a showing, the non-movant must set forth specific facts, supported by the record, demonstrating that “the evidence presents a sufficient disagreement to require submission to the jury.” Anderson, 477 U.S. at 251-52.
In evaluating a motion for summary judgment, the Court must first determine if the moving party has made a prima facie showing that it is entitled to summary judgment. See Fed.R.Civ.P. 56(a); Celotex, 477 U.S. at 331. Only once that prima facie showing has been made does the burden shift to the nonmoving party to demonstrate the existence of a genuine dispute of material fact. See Fed.R.Civ.P. 56(a); Celotex, 477 U.S. at 331.
Both parties may cite to “particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for the purposes of the motion only), admissions, interrogatory answers or other materials.” Fed.R.Civ.P. 56(c)(1)(A). “An affidavit or declaration used to support or oppose a motion must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant or declarant is competent to testify on the matters stated.” Fed.R.Civ.P. 56(c)(4). “Although evidence may be considered in a form which is inadmissible at trial, the content of the evidence must be capable of admission at trial.” Bender v. Norfolk S. Corp., 994 F.Supp.2d 593, 599 (M.D. Pa. 2014); see also Pamintuan v. Nanticoke Mem'l Hosp., 192 F.3d 378, 387 n.13 (3d Cir. 1999) (noting that it is not proper, on summary judgment, to consider evidence that is not admissible at trial).
Here, the defendants have moved for summary judgment, but the plaintiff has failed to submit a brief in opposition or any other papers contesting the defendants' motion. The plaintiff's failure to actively oppose the defendants' motion for summary judgment implicates two local rules, which provide that a party who fails to file a brief in opposition to a motion “shall be deemed not to oppose such motion,” M.D. Pa. L.R. 7.6, and that all material facts set forth in the movant's statement of material facts “will be deemed to be admitted unless controverted” by a counter-statement of material facts by the nonmovant, M.D. Pa. L.R. 56.1.
However, the plaintiff's failure to respond to the motion does not mean that the defendants are automatically entitled to summary judgment. See Anchorage Assocs. v. Virgin Islands Bd. of Tax Review, 922 F.2d 168, 175 (3d Cir. 1990). These local rules must be construed and applied in a manner consistent with Rule 56 of the Federal Rules of Civil Procedure. See id. at 174. Thus, in the context of a motion for summary judgment, a non-movant's failure to file an opposition brief and counter-statement of material facts is “construed as effecting a waiver of [the nonmovant's] right to controvert the facts asserted by the moving party in the motion for summary judgment or the supporting material accompanying it.” Id. at 175-76. The moving party must nevertheless establish that, based on the facts set forth in support of its motion, it is entitled to judgment as a matter of law. See id.; see also Lorenzo v. Griffith, 12 F.3d 23, 28 (3d Cir. 1993); Miller v. Ashcroft, 76 Fed. App'x 457, 462 (3d Cir. 2003) (“Even though the applicable [Middle District of Pennsylvania] local rules provide that a summary judgment motion is to be considered unopposed and its statement of material facts admitted where a responsive brief is not timely filed, the Magistrate Judge was still required to find that the undisputed facts warranted judgment as a matter of law.”) (citations omitted).
In other words, in the absence of active opposition by the nonmovant, the two-step, burden-shifting analysis that normally applies on summary judgment is abbreviated to just the first step, requiring the moving party to make a prima facie showing that it is entitled to summary judgment, based on the undisputed facts of record. See Fed.R.Civ.P. 56(a); Celotex, 477 U.S. at 331.
II. Undisputed Material Facts
Pursuant to Local Rule 56.1, the following facts are undisputed:
This recitation of undisputed material facts is derived from the defendants' statement of material facts, the substance of which is deemed admitted because Zomerfeld has failed to respond to it. Although all of the defendants' fact statements have been deemed admitted, we have omitted some facts regarding the plaintiff's brief pursuit of a prior state court action, which we find immaterial to this litigation.
On January 24, 2021, Zomerfeld was interviewed by the Kingston Township police department in connection with a criminal complaint by the then 34-year-old Zomerfeld, alleging that, over a period of years prior to his eighteenth birthday in August 2004, he was statutorily raped by a female co-worker and live-in girlfriend, who was less than two years older than him.
At the time of the allegedly unlawful conduct, Zomerfeld was between 15 and 17 years old.
On February 8, 2021, the Kingston Township police department notified Zomerfeld that there would be no prosecution of his statutory rape complaint and that the case was closed because the complained-of conduct did not constitute criminal activityand, even if it had, the applicable statute of limitations had expired.
The applicable criminal statute made it a second-degree felony for a person to engage in sexual intercourse with a complainant who is under 16 years old and to whom the person is not married, but only if the person is at least four years older than the complainant. See 18 Pa. Cons. Stat. Ann. §3122.1(a). The person whom Zomerfeld accused of statutory rape was only 20 months and 24 days older than him.
The applicable statute of limitations was 12 years after the offense was committed. See 42 Pa. Cons. Stat. Ann. § 5552(b.1). Zomerfeld turned 16 in August 2002. Thus, the limitations period had expired more than six years before he filed his criminal complaint.
Approximately one year later, on January 10, 2022, Zomerfeld attended a public work session of the Kingston Township board of supervisors. During the public comment portion of the work session, Zomerfeld aired grievances against the police department and the chief of police with respect to his statutory rape complaint. Zomerfeld was instructed to present his complaints to the township manager, defendant Kathleen J. Sebastian, to be addressed.
On January 12, 2022, Zomerfeld attended the regular meeting of the Kingston Township board of supervisors. That meeting, however, was adjourned without Zomerfeld having been able to address the board of supervisors due to his late arrival at the meeting. Following the conclusion of the meeting, Sebastian provided Zomerfeld with her contact information so they could exchange information related to Zomerfeld's complaints.
After the January 12, 2022, regular meeting had adjourned, a nonparty police officer, Michael Huntzinger, observed that, during Zomerfeld's short stay in the meeting room, Zomerfeld “continually pressed his hand into his pocket as if he was checking to see if something was still in his pocket.” Zomerfeld then left the building, went to his vehicle, and reentered the building, returning to the meeting room shortly after he exited.
With an understanding that the meeting had been adjourned and, thus, there was no legitimate purpose for Zomerfeld to remain in the building, Officer Huntzinger requested that Zomerfeld exit the meeting room and speak with him and another non-party police officer, Officer Prokopchak. Officer Huntzinger explained to Zomerfeld that the meeting was adjourned, that the township manager had provided Zomerfeld with her contact information to assist him in addressing the issues he had raised, and that there was no further purpose for him to remain in the meeting room. Zomerfeld argued that the “adjournment” meant that the board of supervisors was just taking a break. Officer Huntzinger assured Zomerfeld that this was not the case and that the meeting had concluded, but Zomerfeld continued to argue and was instructed to leave the property immediately. Zomerfeld then left the building and remained in the parking lot for approximately ten minutes before finally departing the area.
The next morning, January 13, 2022, Zomerfeld sent an e-mail to Sebastian, which stated:
Please send a copy of your rules you mentioned at the time of meeting also your mission statement for the borough and police department! Those cops should be fired for violating my rights 5 and 14 amendment along with others also would like to know your solicitors name and contact info I'm putting the borough on notice for a potential lawsuit along with personal individuals!
E-mail from Zomerfeld to Sebastian (Jan. 13, 2022, 7:51 a.m.), Doc. 23, at 41.)
Later that same morning, Sebastian responded to Zomerfeld's email request, informing Zomerfeld that Kingston Township does not have a mission statement, directing Zomerfeld to the township's website to complete a right-to-know request form to obtain the documents he sought, and informing Zomerfeld that it was his prerogative if he wanted to initiate a lawsuit. E-mail from Sebastian to Zomerfeld (Jan. 13, 2022, 10:40 a.m.), Doc. 23, at 39.
Later that morning, Zomerfeld sent a follow-up e-mail request to Sebastian:
Oh I need to do this via email your chief accused me of threatening him the last time I spoke to him so I can ask you I need a copy of my police report please forward Thankyou!
E-mail from Zomerfeld to Sebastian (Jan. 13, 2022, 11:15 a.m.), Doc. 23, at 38. A few minutes later, Sebastian informed Zomerfeld by e-mail that his request for a police report must be made through the township police department records manager, non-party Sergeant Martin C. Maransky, but she would forward Zomerfeld's request to Sergeant Maransky. E-mail from Sebastian to Zomerfeld (Jan. 13, 2022, 11:22 a.m.), Doc. 23, at 37.
That afternoon, Sergeant Maransky responded to Zomerfeld's request for a police report by e-mail, stating:
Mr. Zomerfeld,
I believe when you wrote “my police report”, you were referring to your January 2021 complaint alleging a rape was committed in 2004 (police report KT21-3860). If I am wrong, please have your attorney specify a date of the complaint and details of the incident so I can provide your attorney with the police report number. If I am correct, have your attorney request “a copy of police
report KT21-3860” via mail addressed to:
Kingston Township Police
180 East Center Street
Shavertown, PA 18708.
The fee is $25 per police report and the check should be made out to “Kingston Township”. I'm sure your attorney is familiar with proper communication and procedures.
Regards,
Sergeant Martin C. Maransky
E-mail from Maransky to Zomerfeld (Jan. 13, 2022, 3:48 p.m.), Doc. 23, at 36-37.
The next day, January 14, 2022, Zomerfeld responded to Sergeant Maransky by e-mail, stating:
Don't worry hunny you can be politically correct your grave and colleagues is the same size as mine when ever that time comes !! And your kids
E-mail from Zomerfeld to Maransky (Jan. 14, 2022, 8:50 a.m.), Doc. 23, at 36.
On January 26, 2022, due to the threat conveyed by Zomerfeld in that last email message sent to Sergeant Manasky, Sebastian mailed a written no-trespass notice to Zomerfeld, temporarily banning him from entering township property for six months and, over the following six-month period, permitting Zomerfeld to enter township property only with advance notice and under escort by the police. The letter-notice she sent stated, in relevant part:
As you know from your attendance at recent meetings of the Kingston Township Board of Supervisors and subsequent correspondence, I am the Kingston Township Manager. I am writing in response to your January 14, 2022 email to my colleague, Sergeant Martin C. Maransky of the Kingston Township Police Department.
In your email to Sergeant Maransky, you state the following: “Don't worry hunny you can be politically correct your grave and colleagues is the same size as mine when ever that time comes !! And your kids ”
Your threat to Sergeant Maransky, his Kingston Township colleagues, and their children, is considered the beginning of an illegal course of conduct.
Your threat against children is particularly contemptible and despicable.
As a result of your threat, you are henceforth banned absolutely from the Kingston Township Municipal Building . . . [,] the Kingston Township Public Works Facility . . ., the Kingston Township Center Street Park . . . [,] and their premises (including the lawns, driveways and parking lots), until July 31, 2022. Beginning immediately and continuing through July 31, 2022, you have no right, either expressed or implied, to be in the Kingston Township Municipal Building, Kingston Township Public Works Facility, Kingston Township Center Street Park or any part of their premises (including the lawns, driveways and parking lots). Your appearance alone on the stated premises will
be interpreted as hostile action in furtherance of your threats and will be responded to as such.
If during the absolute ban you attempt to enter the Municipal Building, Public Works Facility, Center Street Park or any part of their premises (including the lawns, driveways and parking lots), Kingston Township will pursue all remedies under the law, including criminal prosecution.
From August 1, 2022[,] until February 1, 2023, you are banned absolutely from the Kingston Township Municipal Building, Kingston Township Public Works Facility, Center Street Park and their premises unless you strictly comply with the following requirements:
1. You must provide at least 15 days advance written notice to the Kingston Township Police Department of your intent to enter the Kingston Township Municipal Building, Kingston Township Public Works Facility, Center Street Park or their premises....
2. You shall first report to the Kingston Township Police Department and enter the Municipal Building only through the Department's main public entrance....
3. At all times during your visit to the Kingston Township Municipal Building, Public Works Facility, Center Street Park and their premises, you must be accompanied and escorted by a Kingston Township Police Officer.
4. You must leave the Kingston Township Municipal Building, Public Works facility, Center Street Park and their premises promptly when requested to do so by me or your police escort.
Beginning August 1, 2022, and continuing until February 1, 2023, you have no right to express or imply, to be in the Kingston Township Municipal Building, Public Works Facility, Center Street Park, or any part of their premises (including the lawns, driveways, and parking lots) unless you strictly comply with the foregoing requirements. If you attempt to enter the Municipal Building, Public Works Facility, Center Street Park or any part of their premises without strictly complying with the foregoing requirements, Kingston Township will pursue all remedies under the law, including criminal prosecution and your appearance alone will be interpreted as a hostile action in furtherance of your threats and will be responded to as such.
The purpose of this ban is to ensure the safety of Sergeant Maransky, his colleagues, and their children while leaving open ample alternative channels for communication.
Letter from Sebastian to Zomerfeld (Jan. 26, 2022), Doc. 23, at 17-18; see also Compl. app., Doc. 1, at 9-10.)
We note that all periods of restricted access to municipal premises described in the no-trespass notice-both the initial six-month period of an absolute ban and the subsequent six-month period of limited access- have expired at this time.
III. Discussion
Zomerfeld has brought this federal civil rights action under 42 U.S.C. § 1983. Section 1983 provides in pertinent part:
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be
subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress ....42 U.S.C. § 1983. Section 1983 does not create substantive rights, but instead provides remedies for rights established elsewhere. City of Oklahoma City v. Tuttle, 471 U.S. 808, 816 (1985). To establish a § 1983 claim, a plaintiff must establish that the defendants, acting under color of state law, deprived the plaintiff of a right secured by the United States Constitution. Mark v. Borough of Hatboro, 51 F.3d 1137, 1141 (3d Cir. 1995).
A. Township Police Department
In addition to Kingston Township itself, the pro se complaint also names the Township police department as a defendant. These claims against an administrative arm of the Township may be dismissed as redundant of the plaintiff's claims against the Township itself. See Briggs v. Moore, 251 Fed. App'x 77, 79 (3d Cir. 2007) (per curiam) (police department); Martin v. Red Lion Police Dep't, 146 Fed. App'x 558, 562 n.3 (3d Cir. 2005) (per curiam) (police department.
Accordingly, it is recommended that all claims against the Kingston Township police department be dismissed as redundant of the plaintiff's parallel claims against Kingston Township itself, pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure.
B. Township Supervisors and Township Solicitor
The plaintiff appears to seek to hold unidentified individual township supervisors and the unidentified township solicitor liable for the conduct of the township manager and its police.
But Zomerfeld has failed to allege any personal involvement whatsoever by these unidentified township officials. It is well established that “[c]ivil rights claims cannot be premised on a theory of respondeat superior. Rather, each named defendant must be shown . . . to have been personally involved in the events or occurrences which underlie a claim.” Millbrook v. United States, 8 F.Supp.3d 601, 613 (M.D. Pa. 2014) (citation omitted). As previously explained by the Third Circuit:
A defendant in a civil rights action must have personal involvement in the alleged wrongs [P]ersonal involvement can be shown through allegations of personal direction or of actual knowledge and acquiescence. Allegations of participation or actual knowledge and acquiescence, however, must be made with appropriate particularity.Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1988).
The pro se complaint fails to allege any conduct whatsoever by any of the township supervisors or by the township solicitor. At most, the complaint appears to assert a respondeat superior claim against these unidentified defendants.
Accordingly, we recommend that the plaintiff's § 1983 claims against the unidentified township supervisors and the unidentified township solicitor be dismissed for failure to state a claim upon which relief can be granted, pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure.
C. Fourth Amendment Malicious Prosecution Claim
The pro se complaint makes a passing reference to “malicious prosecution.” But the complaint fails to allege any facts whatsoever that might support a § 1983 malicious prosecution claim. Most critically, the plaintiff has failed to allege the very first element of such a claim-that one or more of the defendants initiated a criminal proceeding against him-much less doing so maliciously and without probable cause. See Estate of Smith v. Marasco, 318 F.3d 497, 521 (3d Cir. 2003).
Accordingly, we recommend that the plaintiff's § 1983 malicious prosecution claims be dismissed for failure to state a claim upon which relief can be granted, pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure.
D. Fifth Amendment Claims
The pro se complaint makes a passing reference to an alleged violation of the plaintiff's Fifth Amendment rights by the defendants, all of whom are local municipal officials, and none of whom are federal officials. But “[i]t is well-established . . . that the Fifth Amendment restricts the actions of federal officials, not state actors.” Highhouse v. Wayne Highlands Sch. Dist., 205 F.Supp.3d 639, 648 (M.D. Pa. 2016).
Accordingly, we recommend that the plaintiff's § 1983 Fifth Amendment claims be dismissed, pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure.
E. Investigation or Prosecution of Alleged Assailant
At its core, the plaintiff's grievance appears to be the failure of Kingston Township police to further investigate and file criminal charges against his former paramour and alleged assailant. Setting aside the merits of the investigating officers' determination that no crime was committed, and that prosecution was barred by the applicable statute of limitations in any event, it is well established that “there is no constitutional right to the investigation or prosecution of another.” Sanders v. Downs, 420 Fed. App'x 175, 180 (3d Cir. 2011) (per curiam); see also Linda R.S. v. Richard D., 410 U.S. 614, 619 (1973) (“[A] private citizen lacks a judicially cognizable interest in the prosecution or nonprosecution of another.”); United States v. Wegeler, 941 F.3d 665, 668 (3d Cir. 2019) (quoting Linda R.S.); In re Kaminski, 960 F.2d 1062, 106465 (D.C. Cir. 1992) (a private party has no right to compel the investigation of another person) (citing Linda R.S.).
Accordingly, we recommend that the plaintiff's § 1983 claims concerning the failure of township police to investigate and prosecute his former paramour and alleged assailant for statutory rape be dismissed for failure to state a claim upon which relief can be granted, pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii).
F. First Amendment Retaliation Claims
To the extent the pro se complaint might be liberally construed to assert a retaliation claim under the First Amendment, he must show: “(1) constitutionally protected conduct, (2) retaliatory action sufficient to deter a person of ordinary firmness from exercising his constitutional rights, and (3) a causal link between the constitutionally protected conduct and the retaliatory action.” Thomas v. Indep. Twp., 463 F.3d 285, 296 (3d Cir. 2006). Here, the plaintiff has failed to allege-much less adduce evidence of-at least one critical element of such a claim.
We decline to construe the pro se complaint to otherwise assert a violation of the plaintiff's First Amendment petition or free speech rights. Neither the pleadings nor any other papers submitted by the plaintiff have alleged or otherwise suggested that Zomerfeld was actually denied the opportunity to speak in a public forum or petition the township for redress of grievances. He was allowed to speak at the January 10, 2022, work session, and it was his own tardiness that precluded him from speaking during the public comment portion of the January 12, 2022, regular meeting of the board of supervisors. He was nevertheless provided with the township manager's contact information and encouraged to communicate with her directly about his grievance. When he requested a copy of a police report, she directed him to the appropriate police department official to respond to that request. Because his speech was never actually chilled, and he was never denied the opportunity to petition his local government for redress, Zomerfeld has failed to allege or establish an injury-in-fact under the First Amendment petition or free speech clauses, and thus he lacks standing to assert a First Amendment petition or free speech claim for damages. See Pool v. City of Houston, 586 F.Supp.3d 603, 629-31 (S.D. Tex. 2022); see also Uzuegbunam v. Preczewski, 141 S.Ct. 792, 796-97, 802 n.* (2021).
It is well established that threats and intimidation are not constitutionally protected speech. See Virginia v. Black, 538 U.S. 343, 359 (2003); United States v. Stoner, 781 Fed. App'x 81, 85 n.5 (3d Cir. 2019). Zomerfeld's email message of January 14, 2022, clearly falls within this category of unprotected speech.
Although the no-trespass notice was clearly prepared in response to Zomerfeld's threatening email message, we note that Zomerfeld had recently spoken during the public comment portion of a work session of the township board of supervisors that took place sixteen days earlier, on January 10, 2022. In certain narrow circumstances, mere temporal proximity may be so unusually suggestive that it is sufficient on its own to demonstrate causation. “[T]he timing of the alleged retaliatory action must be ‘unusually suggestive' of retaliatory motive before a causal link will be inferred.” Estate of Smith, 318 F.3d at 512. Generally, “temporal proximity should be measured in days, rather than in weeks or months, to suggest causation without corroborative evidence.” Diede v. City of McKeesport, 654 F.Supp.2d 363, 377 (W.D. Pa. 2009); see also Thomas v. Town of Hammonton, 351 F.3d 108, 114 (3d Cir. 2003) (finding no causal connection for First Amendment retaliation claim where three weeks passed between protected conduct and alleged retaliatory action); Killen v. N.W. Hum. Servs., Inc., No. 06-4100, 2007 WL 2684541, at *8 (E.D. Pa. Sept. 7, 2007) (finding temporal proximity of 17 days insufficient to establish causation). In the broader context of the undisputed facts-particularly Zomerfeld's subsequent threatening email message-we find this 16-day gap insufficient to establish causation.
Accordingly, we recommend that the defendants' motion for summary judgment be granted with respect to the plaintiff's First Amendment retaliation claims.
G. Fourteenth Amendment Due Process Claims
To the extent the pro se complaint might be liberally construed to assert due process claims under the Fourteenth Amendment, the plaintiff has failed to adduce sufficient evidence to support either a procedural due process claim or a substantive due process claim.
“To prevail on a procedural due process claim, a litigant must show (1) that the state deprived him of a protected interest in life, liberty, or property and (2) that the deprivation occurred without due process of law.” Burns v. PA Dep't of Corr., 544 F.3d 279, 185 (3d Cir. 2008). Here, in response to a threat against township employees and their children, Zomerfeld was temporarily barred for a period of months from entering onto the premises of the township's municipal building, public works facility, and a municipal park, followed by a second period of months during which his access to these properties was restricted to visits with advance notice and a police escort. But he simply has no protected interest in accessing these municipal properties. See Vincent v. City of Sulpher, 805 F.3d 543, 548 (5th Cir. 2015) (individual under investigation for threatening deadly violence against city officials had no clearly established right to go to or remain on public property for lawful purpose such that notice and a hearing was required before banning him from entering city buildings); Brown v. City of Mich. City, 462 F.3d 720, 729 (7th Cir. 2006) (no protected property interest in access to municipal park); id. at 731 (no protected liberty interest in access to municipal park); Warkevicz v. Berwick Area Sch. Dist., No. 4:15-cv-01922, 2016 WL 3753108, at *4 (M.D. Pa. July 14, 2016) (“[T]o ensure the safety and wellbeing of a [municipality's] constituents, removal or exclusion of a member of the public from [municipal] property without a hearing does not violate a constitutional right and consequently is not so actionable.”).
To prevail on a substantive due process claim, a litigant must show that the defendants engaged in the sort of gross misconduct that “shocks the conscience.” Eichenlaub v. Twp. of Indiana, 385 F.3d 274, 285 (3d Cir. 2004). As the Supreme Court of the United States has observed, “the core of the concept” of due process is “protection against arbitrary action” and that “only the most egregious official conduct can be said to be arbitrary in the constitutional sense.” Cty. of Sacramento v. Lewis, 523 U.S. 833, 845-46 (1998) (internal quotation marks omitted). Here, when Zomerfeld appeared at a public meeting of the township board of supervisors, he was permitted to speak during the public comment period, he was encouraged to communicate directly with the township manager regarding his particular concerns, and he did so. He was ultimately directed to communicate with a township police official regarding his request for a copy of a police report. In response to that police official's communication, Zomerfeld sent an email in which he threatened the police officer, his township colleagues, and their children. The township manger responded by issuing a no-trespass letter to Zomerfeld temporarily banning him from entry onto township premises for a period of six months, to be followed by limited access for a subsequent period of six months. Based on the undisputed material facts, viewed in the light most favorable to the non-moving plaintiff, we find that no reasonable jury could conclude that the defendants' conduct was arbitrary or shocked the conscience.
Accordingly, we recommend that the defendants' motion for summary judgment be granted with respect to the plaintiff's Fourteenth Amendment due process claims.
H. Leave to Amend
The Third Circuit has instructed that if a civil rights complaint is vulnerable to dismissal for failure to state a claim, the district court must permit a curative amendment, unless an amendment would be inequitable or futile. Grayson v. Mayview State Hosp., 293 F.3d 103, 108 (3d Cir. 2002). This instruction applies equally to pro se plaintiffs and those represented by counsel. Alston v. Parker, 363 F.3d 229, 235 (3d Cir. 2004). In this case, based on the facts alleged in the complaint and the evidence adduced by the defendants on summary judgment, it is clear that amendment would be futile. See Jones v. SCO Family of Servs., 202 F.Supp.3d 345, 350 n.4 (S.D.N.Y. 2016) (considering evidence outside the pleadings for limited purpose of whether to grant leave to amend); Lauter v. Anoufrieva, 642 F.Supp.2d 1060, 1078 (C.D. Cal. 2009) (“A court may consider factual allegations outside of the complaint in determining whether to grant leave to amend.”); U.S. Fire Ins. Co. v. United Limousine Serv., Inc., 303 F.Supp.2d 432, 445 (S.D.N.Y. 2004). Therefore, we recommend that the plaintiff's federal civil rights claims be dismissed without leave to amend.
I. State-Law Tort Claims
In addition to the § 1983 claims discussed above, the pro se plaintiff has asserted various state-law tort claims against the defendants. But, where a district court has dismissed all claims over which it had original jurisdiction, the court may decline to exercise supplemental jurisdiction over state-law claims. See 28 U.S.C. § 1367(c)(3); see also, e.g., Lundgren v. AmeriStar Credit Solutions, Inc., 40 F.Supp.3d 543, 551-52 (W.D. Pa. 2014) (declining to exercise supplemental jurisdiction over state-law claims after granting summary judgment on federal claims); Mark v. Borough of Hatboro, 5856 F.Supp. 966, 976-77 (E.D. Pa. 1994) (same), aff'd, 51 F.3d 1137 (3d Cir. 1995); Cruz v. City of Wilmington, 814 F.Supp. 405, 414 (D. Del. 1993) (same). Whether the court will exercise supplemental jurisdiction is within its discretion. Kach v. Hose, 589 F.3d 626, 650 (3d Cir. 2009). That decision should be based on “the values of judicial economy, convenience, fairness, and comity.” Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 350 (1988). Ordinarily, when all federal law claims have been dismissed and only state-law claims remain, the balance of these factors indicates that these remaining claims properly belong in state court. Cohill, 484 U.S. at 350. Finding nothing in the record to distinguish this case from the ordinary one, the balance of factors in this case “point[s] toward declining to exercise jurisdiction over the remaining state law claims.” See Cohill, 484 U.S. at 350 n.7. Therefore, we recommend that the plaintiff's state-law claims be dismissed without prejudice pursuant to 28 U.S.C. § 1367(c)(3).
IV. Recommendation
For the foregoing reasons, it is recommended that:
1. The defendants' motion to dismiss or for summary judgment (Doc. 17) be GRANTED;
2. The Clerk be directed to enter JUDGMENT in favor of the defendants and against the plaintiff with respect to the plaintiff's First Amendment retaliation and Fourteenth Amendment due process claims, pursuant to Rule 56 of the Federal Rules of Civil Procedure;
3. The remainder of the plaintiff's federal civil rights claims be DISMISSED WITH PREJUDICE for failure to state a claim upon which relief can be granted, pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) and Rule 12(b)(6) of the Federal Rules of Civil Procedure;
4. The plaintiff's state-law tort claims be DISMISSED WITHOUT PREJUDICE pursuant to 28 U.S.C. § 1367(c)(3); and
5. The Clerk be directed to CLOSE this case.
NOTICE
NOTICE IS HEREBY GIVEN that the undersigned has entered the foregoing Report and Recommendation dated February 9, 2023. 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.
Failure to file timely objections to the foregoing Report and Recommendation may constitute a waiver of any appellate rights.