Filed: Jul. 07, 2003
Latest Update: Mar. 02, 2020
Summary: Opinions of the United 2003 Decisions States Court of Appeals for the Third Circuit 7-7-2003 Graw v. Fantasky Precedential or Non-Precedential: Non-Precedential Docket No. 02-3812 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2003 Recommended Citation "Graw v. Fantasky" (2003). 2003 Decisions. Paper 386. http://digitalcommons.law.villanova.edu/thirdcircuit_2003/386 This decision is brought to you for free and open access by the Opinions of the United S
Summary: Opinions of the United 2003 Decisions States Court of Appeals for the Third Circuit 7-7-2003 Graw v. Fantasky Precedential or Non-Precedential: Non-Precedential Docket No. 02-3812 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2003 Recommended Citation "Graw v. Fantasky" (2003). 2003 Decisions. Paper 386. http://digitalcommons.law.villanova.edu/thirdcircuit_2003/386 This decision is brought to you for free and open access by the Opinions of the United St..
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Opinions of the United
2003 Decisions States Court of Appeals
for the Third Circuit
7-7-2003
Graw v. Fantasky
Precedential or Non-Precedential: Non-Precedential
Docket No. 02-3812
Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2003
Recommended Citation
"Graw v. Fantasky" (2003). 2003 Decisions. Paper 386.
http://digitalcommons.law.villanova.edu/thirdcircuit_2003/386
This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 2003 Decisions by an authorized administrator of Villanova
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 02-3812
CHRISTINE GRAW, et al.,
Appellants
v.
PAUL FANTASKY, et al.,
Appellees
___________
APPEAL FROM THE DISTRICT COURT FOR THE
MIDDLE DISTRICT OF PENNSYLVANIA
D.C. Civ. No. 01-1935
District Judge: The Honorable John E. Jones, III
_____________
Argued: June 2, 2003
_____________
Before: BARRY, FUENTES, Circuit Judges, and MCLAUGHLIN,* District Judge.
(Opinion Filed: July 7, 2003)
Donald A. Bailey, Esq. (Argued)
4311 North 6th Street
Harrisburg, PA 17100
Attorney for Appellants
*
Honorable Mary A. McLaughlin, United States District Judge for the Eastern
District of Pennsylvania, sitting by designation.
James D. Young, Esq. (Argued)
Frank J. Lavery, Jr.
Lavery, Faherty, Young & Patterson
225 Market Street
Suite 304
Harrisburg, PA 17101
Attorneys for Appellees Paul Fantaskey, Robert Kelly, and Borough of Renovo
David L. Schwalm, Esq. (Argued)
Thomas, Thomas & Hafer
305 North Front Street
P.O. Box 999
Harrisburg, PA 17108
Attorney for Appellee John Keeler
Patrick S. Cawley, Esq. (Argued)
D. Michael Fisher
Patrick S. Cawley
Calvin R. Koons
John G. Knorr, III
Office of Attorney General of Pennsylvania
Strawberry Square
Harrisburg, PA 17120
Attorneys for Appellee Shawn Fischer
OPINION OF THE COURT
MCLAUGHLIN, District Judge
Appellants Christine Graw, Charles Graw, James Graw, Alice Shank, and Samuel
Eisenhower appeal the dismissal of their complaint. The plaintiffs alleged that defendants
Paul Fantaskey, Robert Kelly, John Keeler, Shawn Fischer, and the Borough of Renovo
violated their civil rights and state tort law.1 Because we conclude that the District Court
erred in dismissing the entire complaint, we will reverse in part, affirm in part, and
remand for further proceedings consistent with this opinion.
I.
The facts from the complaint that the Court must accept as true for purposes of this
appeal are as follows. The plaintiffs are Christine Graw, Charles Graw, James Graw,
Alice Shank, and Samuel Eisenhower. These individuals are members of "Concerned
Citizens." This group is concerned with public affairs.
The defendants are the Borough of Renovo, Paul Fantaskey, Robert Kelly, John
Keeler, and Shawn Fischer. The Borough of Renovo is in Clinton County, Pennsylvania.
Fantaskey is the police chief of Renovo and a Borough councilman. Kelly is a police
1
Many of the defendants' names are spelled differently in different places in the
pleadings. For example, in the caption of the plaintiffs' complaint, there are defendants
identified as "Paul Fantasky," "Detective Keeler," and "Sean Fisher." Based on the
defendants' filings in this case, the proper spelling of these defendants' names is "Paul
Fantaskey," "John Keeler," and "Shawn Fischer."
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officer in Renovo. Keeler is a county detective for Clinton County. Fischer is a state
police officer. Concerned Citizens has been openly critical of the defendants.
On October 11, 1999, Alice Shank attended a Borough of Renovo council meeting
and videotaped the proceedings. During a break in the meeting, Fantaskey grabbed her
videocamera from underneath her arm. The videocamera was thrust upward into Shank's
face, damaging the eyeglasses she was wearing. The replacement cost of the glasses was
$50.
After the incident at the council meeting, Shank complained to Shawn Fischer. In
the past, Fischer lied for Fantaskey. Fischer also disliked "Concerned Citizens." In
reporting the incident between Shank and Fantaskey, Fischer told his supervisor that
Shank did not know who approached her from behind. Fischer knew that his statement to
his supervisor was a lie.
Shank complained to Keeler after Fischer refused to investigate. Keeler refused to
investigate because Shank would not drop a criminal complaint that she filed against
Fantaskey. Keeler believed the criminal complaint might cost Fantaskey his job.
On November 2, 1999, which was Election Day, there was some unspecified
incident involving Christine Graw, Charles Graw, and Fantaskey at a polling place. On
November 29, 1999, Fantaskey charged Christine and Charles Graw with misdemeanors
and summary offenses stemming from the November 2, 1999 incident. These charges
were dismissed on February 17, 2000 by a judge in state court.
4
In July 2000, Fantaskey filed criminal charges against James Graw because James
Graw took a picture of another person who was outside. When he took the picture, James
Graw was on private property and across the street from the person being photographed.
James Graw wanted to report the person for a violation of welfare regulations. The
charges against Mr. Graw were dismissed in state court as baseless because there was no
law or regulation that prohibited people from taking a public picture.
On July 18, 2000, defendant Fantaskey told David Cohick that Christine Graw was
a "slut," a "whore," and a "bastard." Fantaskey made these remarks in an effort to harm
or injure Christine Graw's reputation.
Fantaskey would not allow anyone who the police department had deemed a "slut,"
a "whore," or a "bastard" to speak out publicly. Fantaskey also harassed and attempted to
intimidate Christine Graw on numerous other occasions. Fantaskey prohibited members
of "Concerned Citizens" from speaking out publicly because of their association with
Christine Graw. At some point, Christine Graw filed a criminal complaint against
Fantaskey.
Robert Kelly, with the encouragement of Fantaskey, filed a harassment charge
against Samuel Eisenhower. The harassment charge was based on Eisenhower's
videotaping of young girls in the street. Fantaskey and Kelly confiscated Eisenhower's
videocamera. A state court judge found the charges to be without merit and dismissed
these charges on August 18, 2000.
5
The Borough of Renovo knowingly allowed, permitted, and ratified Fantaskey’s
behavior. As a Borough Council member and as the Police Commissioner for the
Borough, Fantaskey sets policy for the Borough.
The plaintiffs filed their complaint on October 9, 2001 alleging violations of their
civil rights and of state tort law. The plaintiffs sued Fantaskey for violating their First
Amendment right to speak, to associate, and not to be retaliated against for exercising
their First Amendment rights. Eisenhower also sued Kelly for violating his First
Amendment rights. Each plaintiff except for Shank sued Fantaskey for violating their
Fourth Amendment right to be free of malicious prosecution. Eisenhower also sued Kelly
for malicious prosecution and Kelly and Fantaskey for violating his Fourth Amendment
rights by confiscating his videocamera. Shank and Christine Graw sued Fantaskey for
unspecified Fourteenth Amendment violations. Shank sued Keeler and Fischer for
violating her Fourteenth Amendment rights by refusing to investigate the incident she had
with Fantaskey. All of the plaintiffs sued the Borough of Renovo for violating their
rights under the First, Fourth, and Fourteenth Amendments. Various state tort law claims
were brought by the plaintiffs against Fantaskey.
In December 2001, the defendants moved to dismiss the complaint for failure to
state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6). In September 2002,
the District Court dismissed the complaint, holding that the federal claims failed to state a
claim. The District Court also declined to exercise supplemental jurisdiction over the
6
pendent state law claims.
II.
The District Court had subject matter jurisdiction pursuant to 28 U.S.C. § 1331.
We have appellate jurisdiction pursuant to 28 U.S.C. § 1291.
Our review of the District Court’s dismissal for failure to state a claim is plenary.
Emerson v. Thiel Coll., 296 F.3d 184, 188 (3d Cir. 2002). We apply the same standard to
determine if the complaint should be dismissed for failure to state a claim that the District
Court should have used initially. Holder v. City of Allentown,
987 F.2d 188, 193-94 (3d
Cir. 1993). A motion to dismiss for failure to state a claim 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, the plaintiff is not entitled to relief. Bd. of Trs. of
Teamsters Local 863 Pension Fund v. Foodtown, Inc.,
296 F.3d 164, 167 (3d Cir. 2002).
The plaintiffs' civil rights claims are brought under 42 U.S.C. § 1983. A plaintiff
may be entitled to relief in the context of a Section 1983 claim if the complaint
“sufficiently alleges a deprivation of any right secured by the Constitution.” Higgins v.
Beyer, 293 F.3d 683, 688 (3d Cir. 2002). A complaint alleges sufficient facts if it is
adequate to put the proper defendants on notice of the essential elements of the plaintiffs’
cause of action. Langford v. City of Atlantic City,
235 F.3d 845, 857 (3d Cir. 2000). The
notice pleading standard of Federal Rule of Civil Procedure 8(a) requires only that a
7
complaint contain a short and plain statement showing a right to relief, “not a detailed
recitation of the proof that will in the end establish such a right.” Pryor v. Nat'l Collegiate
Athletic Ass'n, 288 F.3d 548, 564 (3d Cir. 2002).
Applying these principles to the plaintiffs' complaint, the District Court erred by
dismissing the First Amendment and Fourth Amendment claims against Fantaskey, Kelly,
and the Borough of Renovo because it does not appear beyond doubt that the plaintiffs
can prove no set of facts that would entitle them to relief against these defendants on
these claims. The District Court, however, correctly dismissed the claims against Keeler
and Fischer, and the unspecified Fourteenth Amendment claims against Fantaskey.
Each plaintiff alleges violations of various facets of their First Amendment rights:
the right to speak; the right to associate; and the right to be free of retaliatory action
motivated by the individual's exercise of First Amendment rights. For a right to speak
claim, a plaintiff must allege that: (1) the speech was protected by the First Amendment
and (2) the government excluded the plaintiff's speech in a public or non-public forum
without justifying its actions to the standard required for the particular forum. See
Cornelius v. NAACP Legal Def. & Educ. Fund, Inc., 473 U.S. 788, 797 (1985). For a
right to associate claim, a plaintiff must allege that: (1) the group engaged in protected
activities such as expressing its views on political, economic, cultural, and social affairs;
(2) the state action at issue significantly infringed the group's ability to advocate its
viewpoints; and (3) the state’s interest in its action was outweighed by the burden
8
imposed on the associational expression. See Pi Lambda Phi Fraternity v. Univ. of
Pittsburgh, 229 F.3d 435, 438, 446-47 (3d Cir. 2000). For a First Amendment retaliation
claim, a plaintiff must allege that: (1) the plaintiff engaged in protected activity; (2) the
government responded with retaliation; and (3) the protected activity was the cause of the
retaliation. See Estate of Smith v. Marasco,
318 F.3d 497, 512 (3d Cir. 2003).
The complaint alleges facts sufficient to state a claim on behalf of each plaintiff
with respect to one or more theories of a First Amendment violation. Fairly read, the
complaint states that the plaintiffs are members or supporters of Concerned Citizens, a
group that has been openly critical of the defendants on questions of public interest. This
type of activity is protected by the First Amendment.
Fantaskey allegedly interfered with the rights of the members of Concerned
Citizens, that includes the plaintiffs, to associate and to speak out publicly. The plaintiffs,
therefore, stated a claim against Fantaskey for violating their First Amendment rights to
associate and to speak.
In retaliation for speaking on public issues, Fantaskey charged Christine and
Charles Graw with certain offenses that were later dismissed. Implicit in the claims of
James Graw is the charge that Fantaskey filed charges against him for conduct that was a
prelude to reporting violations of welfare regulations. Eisenhower’s First Amendment
claim is similar to that of James Graw. Kelly, with Fantaskey's encouragement, filed a
harassment charge against Eisenhower for conduct that could have been a prelude to
9
reporting some type of illegal conduct. Shank alleges that she was retaliated against for
videotaping a Borough of Renovo Council meeting. Although these First Amendment
claims could have been articulated more clearly and more specific facts alleged, we
cannot say that under no circumstances could the plaintiffs establish a First Amendment
retaliation claim.
The complaint also adequately pleads a violation of the Fourth Amendment's
prohibition on unreasonable searches and seizures. To sustain a Fourth Amendment
claim, there must be allegations sufficient to show a search or a seizure. Gallo v. City of
Philadelphia, 161 F.3d 217, 223 (3d Cir. 1998); see California v. Hodari D.,
499 U.S.
621, 625-27 (1991); Brower v. County of Inyo,
489 U.S. 593, 595-96 (1989). In the
present case, the alleged seizures related to the seizure of Eisenhower's videocamera and
the malicious prosecution of each plaintiff except Alice Shank. Eisenhower's allegation
that his videocamera was seized without probable cause is sufficient to state a claim for a
Fourth Amendment violation.
We also conclude that the complaint adequately alleges a seizure for purposes of
the malicious prosecution claims of Christine Graw, Charles Graw, James Graw, and
Samuel Eisenhower. They allege that they were forced to defend themselves against
baseless criminal charges. In order to prove these charges, they will have to show that
they were seized as a consequence of a legal proceeding. We have interpreted the
concept of seizure broadly for purposes of a malicious prosecution claim. In Gallo, it was
10
enough that the plaintiff was indicted by a grand jury, arraigned, released on a personal
recognizance bond, and instructed to remain within the boundaries of Pennsylvania and
New Jersey. Analogizing the imposition of these restrictions to a Terry stop, we held that
“[w]hen [the plaintiff] was obliged to go to court and answer the charges against him, [the
plaintiff], like the plaintiff in Terry, was brought to a stop.” Gallo, 161 F.3d at 223; see
Terry v. Ohio,
392 U.S. 1, 16-18 (1968). Given the broad approach taken in Gallo, the
plaintiffs sufficiently allege a seizure for the purpose of surviving a Rule 12(b)(6) motion.
See
Gallo, 161 F.3d at 223-25.
We disagree with the conclusion of the District Court that the complaint does not
allege “any facts that could tend to prove liability on the part of the Borough.” Under
Section 1983, municipalities and other local government units are among those persons to
whom Section 1983 applies. Monell v. New York City Dep't of Soc. Servs., 436 U.S.
658, 690 (1978). To determine whether a municipality can be held liable under Section
1983, there must be: (1) a municipal policy and (2) a causal link between the municipal
policy and the violation of the plaintiff's constitutional rights. Bd. of County Comm'rs v.
Brown,
520 U.S. 397, 403-05 (1997).
The complaint alleges that Fantaskey is a council member of the Borough and that
the Borough has “consistently approved, ratified, in all ways supported, and encouraged
the misconduct of Paul Fantasky as directed at the plaintiffs knowing he sets policy for
the Borough as Police Commissioner and Council member and knowing he blatantly
11
violated peoples rights.” The plaintiffs also allege that the Borough has a custom,
practice, and usage of committing unlawful acts against political critics such as
Concerned Citizens. With its allegations that Fantaskey violated several of the plaintiffs'
constitutional rights and that Fantaskey set municipal policy, a Section 1983 claim has
been stated against the Borough of Renovo.
The state law claims will also be reinstated. These claims were dismissed because
the federal claims were dismissed and not for failure to state a claim. With the
reinstatement of several federal claims, the basis for dismissing the state law claims has
been eliminated.
The dismissal of the claims against Fischer and Keeler, however, will be affirmed.
That claim in essence is that Fischer and Keeler did not investigate Shank’s claim that
Fantaskey violated her First and Fourteenth Amendment rights. We agree with the
District Court that “an allegation of a failure to investigate, without another recognizable
constitutional right, is not sufficient to sustain a section 1983 claim.” See DeShaney v.
Winnebago County Dep't of Soc. Servs., 489 U.S. 189, 195-96 (1989). We will also
affirm the dismissal of any Fourteenth Amendment claims against Fantaskey. The
plaintiff does not articulate clearly the basis for such a claim and we can discern none in
the complaint.
Having determined that the plaintiffs' complaint stated a claim for various First
and Fourth Amendment violations, we REVERSE in part, AFFIRM in part, and
12
REMAND for further proceedings consistent with this opinion.
TO THE CLERK OF THE COURT:
Kindly file the foregoing Opinion.
_____ /s/ Mary A. McLaughlin___________
District Judge
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