The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
EXAVIER L. WARDLAW : CIVIL ACTION
:
v. : NO. 21-1942
:
THE CITY OF PHILADELPHIA, et al. :
MEMORANDUM
KEARNEY, J. March 10, 2022
Philadelphian Exavier L. Wardlaw is unhappy with a Philadelphia public access television
station deciding not to air his film. He pro se sues the City, the public access station, and its Board
of Directors claiming the decision to not air his submitted film violates his civil rights. The City
and the public access station and its Board of Directors move to dismiss the complaint. Mr.
Wardlaw pleads no facts regarding the City. The public access station and its directors are not state
actors under the pleaded facts. He fails to allege how a person discriminated against him based on
political or racial reasons which may give rise to a disparate treatment claim. We grant the
Defendants’ motions and dismiss Mr. Wardlaw’s complaint with leave to timely amend if he can
plead facts allowing us to plausibly infer conduct by a state actor depriving him of his First
Amendment rights or disparate treatment under civil rights laws.
I. Pro se alleged facts.
Philadelphian Exavier L Wardlaw is a “member” of PhillyCAM Public Access TV because
he is a Philadelphia citizen.1 PhillyCAM is a private non-profit corporation which operates a public
access channel.2 Mr. Wardlaw submitted a film to PhillyCAM he produced titled “Underground
in Alphabet City” about the Lower East Side neighborhood of New York.3 PhillyCAM rejected
the film because “‘it was not made in Phila[delphia] or by a Philadelphian’ as dictated by the board
of directors . . . .”4 But it aired “the Tony Paris Film, The Lower East Side Project, Democracy
Now, and Gay USA non[e] of which was produced in Phila[delphia] or by a Philadelphian.”5
Mr. Wardlaw returns with a pro se civil rights claim against the City, PhillyCAM, and its
Board for acting on “political and racist motives” when it discriminated against him by treating
him differently from other producers whose films PhillyCAM aired.6 Mr. Wardlaw also claims
PhillyCAM and its Board’s rejection of his film for broadcast denied him the right of freedom of
speech under the First Amendment.7 Mr. Wardlaw requests we enjoin PhillyCAM from the
allegedly discriminatory conduct against its members through an Order directed to the City. Mr.
Wardlaw also requests we enjoin the Board from adopting discriminatory policies limiting
members’ “right to speak on the public airways” in an Order directed to PhillyCAM.
II. Analysis
The City of Philadelphia, PhillyCAM, and its Board move to dismiss Mr. Wardlaw’s pro
se complaint or, alternatively, for a more definite statement. We grant Defendants’ motions to
dismiss under Rule 12(b)(6) with leave to amend. 8
We construe Mr. Wardlaw’s pro se complaint liberally as attempting to state two claims:
(1) a deprivation of his First Amendment rights under 42 U.S.C. § 1983; and (2) a disparate
treatment claim based on racial and political discrimination in violation of an unspecified section
of the Civil Rights Act of 1964. We are “mindful of our ‘obligation to liberally construe a pro se
litigant’s pleadings’ . . . .”9 We “remain flexible” and “apply the relevant legal principle even when
the complaint has failed to name it.”10 But “pro se litigants still must allege sufficient facts in their
complaints to support a claim.”11
A. Mr. Wardlaw fails to state a claim under section 1983 for the deprivation of his
First Amendment rights.
A state actor may be liable for “the deprivation of any rights, privileges, or immunities
secured by the Constitution and laws …”12 Congress does not confer rights upon Mr. Wardlaw
through section 1983. The civil rights law is the vehicle used to bring federal constitutional claims
in federal court. Mr. Wardlaw must plead two elements to proceed on civil rights claims: (1) a
person acting under color of state law committed the complained-of conduct; and (2) the conduct
deprived him of rights, privileges, or immunities secured by the Constitution or laws of the United
States.13
1. Mr. Wardlaw fails to allege the City’s involvement in the challenged
decision.
The City moves to dismiss the First Amendment claim against it and argues Mr. Wardlaw
pleads no facts which involve the City in the alleged wrongful conduct. Mr. Wardlaw does not
allege a fact as to the City’s conduct beyond naming the City as a party. Mr. Wardlaw may be
under the impression PhillyCAM—a private non-profit group—acts on behalf of the City from his
request we enjoin PhillyCAM in an order directed to the City and not the public access station.
Mr. Wardlaw alleges no facts from which we may construe the City’s involvement. Mr. Wardlaw’s
claims against the City are dismissed without prejudice to Mr. Wardlaw timely amending to add
facts of the City’s involvement in the decision to not air his film and how this decision affected
his civil rights.
2. Mr. Wardlaw fails to allege PhillyCAM and its directors are state actors.
Mr. Wardlaw alleges PhillyCAM and its Board violated his First Amendment right to free
speech by not airing his film on the public access channel. PhillyCAM and its Board move to
dismiss the First Amendment claim arguing: (1) they are not state actors; and (2) Mr. Wardlaw
fails to plead sufficient facts showing his film is protected speech. We need not address
PhillyCAM’s and its Board’s second argument because Mr. Wardlaw fails to allege they are state
actors.
PhillyCAM and its Board may only be liable to Mr. Wardlaw for the alleged deprivation
of his First Amendment rights if they are state actors. This is a dispositive question. PhillyCAM is
a private non-profit organization operating a public access channel on a cable system. PhillyCAM
and the individual members of its Board maintain they are private actors and not subject to First
Amendment restrictions on their editorial discretion under the Supreme Court’s holding in
Manhattan Community Access Corporation v. Halleck.14 We agree.
In Halleck, plaintiffs produced and submitted a film for airing on the Manhattan public
access channel operated by a private non-profit corporation. After airing plaintiffs’ film, the non-
profit corporation received complaints about the film’s content and suspended plaintiffs from using
the public access channels. Plaintiffs sued the corporation claiming it violated their First
Amendment free-speech rights when it restricted their access to the public access channels because
of the content of their film.15 The corporation moved to dismiss arguing it is not a state actor and
not subject to First Amendment restrictions on its editorial discretion. The district court agreed and
dismissed the First Amendment claim. The court of appeals reversed, finding the corporation a
state actor.
The Supreme Court decided to address the question of whether operators of public access
cable channels are state actors subject to the First Amendment. The Court ultimately held a private
entity operating a public access channel on a cable system is not “a traditional, exclusive public
function” of the state – a hallmark of state action – transforming the private actor into a state actor
for purposes of section 1983 liability.16
Under longstanding Supreme Court precedent, a private entity may qualify as a state actor
“in a few limited circumstances” including when (1) the private entity performs a traditional,
exclusive public function; (2) the government compels the private entity to take a particular action;
or (3) the government acts jointly with the private entity.17 The film producers in Halleck argued
the corporation operating the public access channel exercises a traditional, exclusive public
function. The Court disagreed, explaining “to qualify as a traditional, exclusive public function
within the meaning of our state-action precedents, the government must have traditionally and
exclusively performed the function.”18 The Court recognized its longstanding precedent stressing
“very few” functions fall into the “traditional and exclusive” function.19 Under the Court’s cases,
those functions “include, for example, running elections and operating a company town” while
functions “including, for example, running sports associations and leagues, administering
insurance payments, operating nursing homes, providing special education, representing indigent
criminal defendants, resolving private disputes, and supplying electricity” do not fall into the
“traditional and exclusive” function category.20
The Court held the operation of public access channels on a cable system “has not
traditionally and exclusively been performed by government”; “[i]n short, operating public access
channels on a cable system is not a traditional, exclusive public function within the meaning of
[the] Court’s cases” and does not qualify a private entity as a state actor.21 As a matter of law,
PhillyCAM’s operation of Philadelphia’s public access channel on a cable system does not
transform it into a state actor under the “traditional, exclusive public function” test.
The film producers in Halleck made two other arguments to support their “traditional,
exclusive public function” argument: (1) the relevant function of the challenged corporation is not
simply the operation of a public access channel on a cable system, but rather more generally the
operation of a public forum for speech; and (2) because New York City designated the private
corporation to operate the public access channel over a cable system and because the State heavily
regulated the operation of public access channels, the private corporation is a state actor.22 The
film producers in Halleck alternatively argued the public access channel is actually the property of
the City, and not a private entity, making the corporation a manager of government property on
behalf of the City.23
The Court rejected film producers’ arguments in their entirety. The Court distinguished the
government providing a public forum for speech triggering First Amendment protections from a
private entity providing a forum for speech where the First Amendment is not triggered, allowing
the private entity to exercise editorial discretion of speech and speakers in the forum.24 Under the
Court’s precedent, “[p]roviding some kind of forum for speech is not an activity that only
governmental entities have traditionally performed. Therefore, a private entity who provides a
forum for speech is not transformed by that fact alone into a state actor.”25 Simply hosting speech
by others “is not a traditional, exclusive public function and does not alone transform private
entities into state actors subject to First Amendment constraints.”26 The Court further found the
mere regulation of public access channels by the state does not make a private entity a state actor.27
The Court rejected the film producers’ argument the public access channels are actually
the property of the City making the private entity simply acting as a manager of government
property on behalf of the City. The Court rejected this argument finding the record contained
nothing to suggest the federal, state, or city government owned or leased either the cable system
or the public access channels at issue, or otherwise had a property interest in the channels or
system.28 And an easement by the private entity or permission from a governmental entity to use
public rights-of-way to lay cable does not render the private entity a state actor.29
Applying Halleck today, PhillyCAM is not a state actor under the “traditional and exclusive
public function” test. Without sufficient allegations in Mr. Wardlaw’s complaint, we cannot
determine whether PhillyCAM and its Board are state actors under some other theory of state
action. PhillyCAM and its Board are not state actors. But the Court in Halleck recognized areas
where the operator of a public access channel may possibly be a state actor. As currently pleaded,
Mr. Wardlaw offers no allegations plausibly stating a claim against PhillyCAM and its Board as a
state actor.
Our Court of Appeals has yet to interpret the Court’s holding in Halleck. Our colleague
Judge Rufe recently applied the Supreme Court’s reasoning in Halleck. In Egli v. Chester County
Library System,30 an author alleged Chester County Library System, Montgomery County Library
System, Pennsylvania Cable Network, National Public Radio, and WHYY, Inc. violated his First
Amendment rights under section 1983 and the Civil Rights Act of 1964. The author alleged the
libraries and media outlets violated his civil rights when: the libraries rejected his book for their
collections; the cable network declined to interview him about his book; and National Public Radio
and WHYY, Inc. for declining to interview him as a guest on their programs. The media outlets
moved to dismiss the claims, arguing they are not state actors. Judge Rufe agreed, applying Halleck
to find government regulation of the media outlets did not transform them into state actors and the
author failed to allege facts under the “few limited circumstances” where a private entity can
qualify as a state actor under Halleck.31
Judge Schmehl recently applied Halleck to find general counsel for the Lehigh Valley
Health Network is not a state actor. In Rose v. Guanowsky, a litigious patient claimed the health
network’s general counsel infringed on his First Amendment rights by sending him a letter
directing him to cease communications with the health network’s senior leadership regarding his
primary care doctor.32 Judge Schmehl found the patient failed to plausibly allege facts
demonstrating the general counsel for the private health system is a state actor.33 Citing Halleck,
Judge Schmehl explained while a private entity may qualify as a state actor where it exercises
powers traditionally and exclusively reserved to the state, the fact the government licenses,
contracts with, or grants a monopoly to a private entity, or if the private entity receives federal
funding, does not transform the private entity into a state actor.34 The private entity is not a state
actor unless it performs a traditional, exclusive public function. Judge Schmehl dismissed the
litigious patient’s claims against the health network’s general counsel with prejudice.35
We find the Supreme Court’s analysis in Halleck controls. We have no facts suggesting
PhillyCAM performs a traditional, exclusive public function. Mr. Wardlaw does not allege the
City compelled PhillyCAM to take a particular action. He does not allege the City acted jointly
with the private entity PhillyCAM. Mr. Wardlaw does not allege facts allowing us to plausibly
infer PhillyCAM and its Board are state actors. We dismiss Mr. Wardlaw’s First Amendment claim
against PhillyCAM and its directors.
B. We dismiss Mr. Wardlaw’s disparate treatment claim of racial and political
discrimination under the Civil Rights Act of 1964.
Mr. Wardlaw also claims the decision to not air his film demonstrates racially and
politically motivated disparate treatment under the Civil Rights Act of 1964. “The Civil Rights
Act of 1964, comprised of eleven titles and numerous sections, has been called the ‘most
comprehensive undertaking’ to prevent and address discrimination in a wide range of contexts.”36
Mr. Wardlaw fails to identify which provision(s) of the Civil Rights Act of 1964 he claims
the City or PhillyCAM and its Board violated. We cannot address the viability of his claims of
racially and politically motivated disparate treatment based solely on a general reference to the
Act. We grant Mr. Wardlaw leave to amend with facts and cognizable claims under the Act. Mr.
Wardlaw—should he choose to amend—must (1) point to the specific provision(s) of the Act upon
which his claims are based; and (2) plead sufficient facts he is entitled to relief under such
provision(s).
III. Conclusion
Exavier L. Wardlaw sues the City of Philadelphia, PhillyCAM Public Access TV and its
Board of Directors because they refused to air a film. Mr. Wardlaw alleges they violated the Civil
Rights Act of 1964 and his First Amendment rights. We grant the City of Philadelphia,
PhillyCAM, and the Board of Directors’ Motions to dismiss for failure to state claims under section
1983 and the Civil Rights Act of 1964 with leave to amend. We deny the alternative request for a
more definite statement as moot.
1 ECF Doc. No. 2 at 4 (“I would like the City of Philadelphia to inform PhillyCAM that citizens
(members) have the right of Freedom of Speech and not to discriminate against members for
political reasons.”).
2 PhillyCAM describes itself as “the non-profit designated by the City of Philadelphia to operate
its public access television network.” See https://phillycam.org/about. When evaluating a motion
to dismiss we may consider any “matters incorporated by reference or integral to the claim, items
subject to judicial notice, matters of public record, orders, [and] items appearing in the record of
the case.” Buck v. Hampton Twp. Sch. Dist., 452 F.3d 256, 260 (3d Cir. 2006) (quoting 5B Charles
A. Wright & Arthur R. Miller, Federal Practice & Procedure § 1357 (3d ed.2004)).
3 ECF Doc. No. 2 at 3.
4 Id.
5 Id.
6 Id. at 3–4. We twice dismissed earlier cases he brought as frivolous under 28 U.S.C. §1915 when
he did not pay the filing fee. We dismissed Mr. Wardlaw’s pro se complaints as frivolous when he
sued the Philadelphia Water Revenue Department for water service as time barred (No. 18-1128)
and when he sued a supermarket and private security company as they are not state actors (No. 21-
1547). He now pays the filing fees but this most recent pro se claim also lacks merit.
7 Id. at 3.
8 A complaint must state a claim upon which relief can be granted. Fed. R. Civ. P. 12(b)(6). The
purpose of Rule 12(b)(6) is to test the sufficiency of the factual allegations in a complaint. Sanders
v. United States, 790 F. App’x 424, 426 (3d Cir. 2019). If a plaintiff is unable to plead “enough
facts to state a claim to relief that is plausible on its face,” the court should dismiss the complaint.
Id. (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)); see also Kajla v. U.S.
Bank Nat’l Ass’n as Tr. for Credit Suisse First Boston MBS ARMT 2005-8, 806 F. App’x 101, 104
n.5 (3d Cir. 2020) (quoting Warren Gen. Hosp. v. Amgen Inc., 643 F.3d 77, 84 (3d Cir. 2011)). “A
claim is facially plausible ‘when the plaintiff pleads factual content that allows the court to draw
the reasonable inference that the defendant is liable for the misconduct alleged.’” Klotz v.
Celentano Stadtmauer and Walentowicz LLP, 991 F.3d 458, 462 (3d Cir. 2021) (quoting Ashcroft
v. Iqbal, 556 U.S. 662, 678 (2009)). While “[t]he plausibility standard is not akin to a ‘probability
requirement,’” it does require the pleading show “more than a sheer possibility … a defendant has
acted unlawfully.” Riboldi v. Warren Cnty. Dep’t of Human Servs. Div. of Temp. Assistance &
Soc. Servs., 781 F. App’x 44, 46 (3d Cir. 2019) (quoting Iqbal, 556 U.S. at 678). “A pleading that
merely ‘tenders naked assertion[s] devoid of further factual enhancement’ is insufficient.” Id.
(quoting Iqbal, 556 U.S. at 668).
In determining whether to grant a Rule 12(b)(6) motion, “we accept all well-pleaded allegations
as true and draw all reasonable inferences in favor of the plaintiff” but “disregard threadbare
recitals of the elements of a cause of action, legal conclusions, and conclusory statements.” Robert
W. Mauthe, M.D., P.C. v. Spreemo, Inc., 806 F. App’x 151, 152 (3d Cir. 2020) (quoting City of
Cambridge Ret. Sys. v. Altisource Asset Mgmt. Corp., 908 F.3d 872, 878–79 (3d Cir. 2018)). Our
Court of Appeals requires us to apply a three-step analysis to a 12(b)(6) motion: (1) we “‘tak[e]
note of the elements a plaintiff must plead to state a claim’”; (2) we “identify allegations that …
‘are not entitled to the assumption of truth’ because those allegations ‘are no more than
conclusion[s]’”; and, (3) “‘[w]hen there are well-pleaded factual allegations,’ we ‘assume their
veracity’ … in addition to assuming the veracity of ‘all reasonable inferences that can be drawn
from’ those allegations … and, construing the allegations and reasonable inferences ‘in the light
most favorable to the [plaintiff]’…, we determine whether they ‘plausibly give rise to an
entitlement to relief.’” Oakwood Lab’ys LLC v. Thanoo, 999 F.3d 892, 904 (3d Cir. 2021) (internal
citations omitted); Connelly v. Lane Constr. Corp., 809 F.3d 780, 787 (3d Cir. 2016).
9 Dooley v. Wetzel, 957 F.3d 366, 374 (3d Cir. 2020) (quoting Higgs v. Att’y Gen., 655 F.3d 333,
339 (3d Cir. 2011)) (emphasis omitted).
10 Vogt v. Wetzel, 8 F.4th 182, 185 (3d Cir. 2021) (quoting Mala v. Crown Bay Marina, Inc., 704
F.3d 239, 244 (3d Cir. 2013)).
11 Id. (quoting Mala, 704 F.3d at 245).
12 42 U.S.C. § 1983.
13 Schneyder v. Smith, 653 F.3d 313, 319 (3d Cir. 2011).
14 139 S. Ct. 1921 (2019).
15 Id. at 1927.
16 Id. at 1927–30.
17 Id. at 1928 (citations omitted).
18 Id. at 1929.
19 Id. (quoting Flagg Bros., Inc. v. Brooks, 436 U.S. 149, 158 (1978)).
20 Id. at 1929 (collecting cases).
21 Id. at 1929–30.
22 Id. at 1930–32.
23 Id. at 1933–34.
24 Id. at 1930–31 (citing Hudgens v. NLRB, 424 U.S. 507 (1976)).
25 Id. at 1930.
26 Id.
27 Id. at 1931–32.
28 Id. at 1933–34.
29 Id.
30 394 F. Supp. 3d 497 (E.D. Pa. 2019).
31 Id. at 505–06.
32 Rose v. Guanowsky, No. 21-875, 2021 WL 5356804 (E.D. Pa. Nov. 17, 2021).
33 Id. at *4-*5.
34 Id.
35 Id. at *5.
36 Lazar v. Town of W. Sadsbury, Pa., No. 20-5336, 2021 WL 632639, at *6 (E.D. Pa. Feb. 18,
2021) (quoting Congressional Research Service, C. Back, The Civil Rights Act of 1964: An
Overview, at 1 (Sept. 21, 2020)) (dismissing without prejudice a Civil Rights Act of 1964 claim
for failure to state a claim where plaintiff failed to specify which provision under the Act gave rise
to his claim or claims).