WARDLAW v. THE CITY OF PHILADELPHIA

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. April 28, 2022

Self-proclaimed author, playwright, and community activist Exavier L. Wardlaw

repeatedly files claims which we summarily dismiss. We earlier dismissed cases against the City

claiming a constitutional right to water service and another against his local supermarket.1 We

dismissed his most recent challenge to a public access station deciding to not broadcast one of his

films but granted him leave to amend six weeks ago if he could plead a state actor depriving him

of civil rights within our limited federal subject matter jurisdiction.2 He returns pro se with an

amended claim the City of Philadelphia and public access station PhillyCAM and its Board of

Directors deprived him of his First Amendment rights by refusing to broadcast one of his films;

he asks us to decide what the public access station can broadcast. He does not plead state action.

He does not state a claim. He also asks we disqualify ourselves because he thinks we are biased

against him. The City and PhillyCAM and its Board separately move to dismiss the amended

Complaint. Mr. Wardlaw’s amended Complaint fails to state a claim under the First Amendment

and we will dismiss it with prejudice.

I. Alleged pro se facts.

Exavier L. Wardlaw describes himself as an author, playwright, and community activist.3

He planned on filming a musical in 1983 and contacted Comcast for editing assistance.4 A Comcast

manager agreed to help Mr. Wardlaw thirty-nine years ago. While Mr. Wardlaw edited his film,

the manager told Mr. Wardlaw Comcast and Philadelphia City Council had plans to meet about a

Philadelphia cable franchise.5 The Comcast manager asked Mr. Wardlaw to “rally the community”

to support Comcast. Mr. Wardlaw agreed to do so and he believes PhillyCAM is based on his

vision of public access television.6

Mr. Wardlaw sought to air his films and programs on PhillyCAM beginning in December

2020.7 PhillyCAM denied his request to air his programs. PhillyCAM refused to broadcast the film

“Only the Ball was White,” a history of the “Black baseball leagues through Jackie Robinson.”8

PhillyCAM refused to broadcast the film, explaining to Mr. Wardlaw the Public Broadcasting

Service (“PBS”) in Chicago produced the film in 1973 and PhillyCAM could not broadcast the

film without violating copyright laws.9 Mr. Wardlaw disagreed with this explanation because he

told someone at PhillyCAM of “leeches” by PBS Chicago in 2020.10 In another instance,

PhillyCAM denied him the right to air an educational program.11

He now alleges PhillyCAM denied his First Amendment rights by refusing to broadcast

his “Only the Ball was White” film. He claims PhillyCAM and its Board:

• “do not have standing to be the copyright police”;12

• cannot “contrive a copyright law as an excuse to keep a member from airing a

program on public access TV”;13

• are in breach of “the original contract” between the City and a cable carrier for the

Philadelphia cable television franchise;14

• do not have the right to deny him, a “member” of PhillyCAM, the right to the

“public airways”;15

• are preventing citizens’ access to the public airways for arbitrary reasons “such as

enforcing the copyright law” because this is “not the mission of PhillyCAM”;16 and

• are denying him the right to freedom of speech and press by refusing to air his

programs on public access television in violation of the First Amendment.17

Mr. Wardlaw seeks a “Government decision in this matter so that there is no further

confusion as to what can and what cannot be aired on public access TV.”18 He continues to claim

the City, PhillyCAM and its Board deprived him of First Amendment rights. He asks for a “change

of venue,” suggesting we are “biased for PhillyCAM et al.”19

Mr. Wardlaw submitted two amendments we construe together as his amended

complaint.20 He continues to claim a deprivation by the City and PhillyCAM and its Board of his

First Amendment rights. He appears to have abandoned his claim PhillyCAM’s discriminated

against him on the basis of his race and politics under an unspecified section of the City Rights

Act of 1964.21

The City and PhillyCAM and its Board move to dismiss the amended Complaint under

Federal Rule of Civil Procedure 12(b)(6).22 Mr. Wardlaw did not respond to the motions to

dismiss.23 We grant the motions to dismiss and dismiss the amended Complaint with prejudice.

II. Analysis

Mr. Wardlaw’s prolix amended Complaint provides, among other immaterial facts, his

background as an author, filmmaker, and playwright beginning in 1973. We construe his amended

Complaint as a renewed attempt to bring a claim under section 1983 for the deprivation of his First

Amendment right. As we earlier explained, Congress does not confer rights upon Mr. Wardlaw

through section 1983. Section 1983 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.24

Mr. Wardlaw makes some new allegations, primarily surrounding his belief PhillyCAM

and its Board are the “copyright police” and uses the copyright laws as a way to restrain his First

Amendment rights. He also suggests PhillyCAM breached a 1985 contract between the City and a

cable contractor. He asks us for a “Government decision in this matter” to clear up confusion “as

to what can and what cannot be aired on public access” television. Mr. Wardlaw fails to correct

the fatal defects in his original complaint. We grant Defendants’ motions to dismiss.25

A. There is no alleged conduct attributable to the City of Philadelphia.

The City seeks dismissal because Mr. Wardlaw fails to allege the City’s involvement in

the complained-of conduct.26 Mr. Wardlaw does not cure the defects in his Complaint; his

amended Complaint lacks facts regarding the City’s involvement in the alleged deprivation of First

Amendment rights.

Mr. Wardlaw attaches franchise agreements from September and October 1985 between

the City, as franchisor, and Comcast Cablevision of Philadelphia, L.P.; Rollins Cablevision of

Philadelphia, Inc.; and Greater Philadelphia Cablevision, Inc., each as franchisees for certain

“Franchise Areas.”27 He attaches an amendment to a franchise agreement between the City and

Rollins Cablevision in 1986 and 1987 for a “CATV”28 franchise and an assumption of the Rollins

Cablevision franchise by Comcast Cablevision in 1987.29 He attaches one page of a September 6,

1984 letter from Barbara W. Mather, then City Solicitor, to Representative Thomas M. Foglietta

regarding the Cable Communications Act of 1984.30 These documents do not allege facts

supporting the City’s involvement in depriving Mr. Wardlaw of any rights. The documents show

the City’s franchise agreements with cable providers for CATV in the mid-1980s.

We allowed Mr. Wardlaw leave to amend his complaint to allege facts supporting his claim

the City deprived him of his First Amendment rights. He failed to do so. We dismiss his amended

Complaint against the City with prejudice.

B. Mr. Wardlaw does not plead PhillyCAM and its Board are state actors.

Mr. Wardlaw repackages his allegations against PhillyCAM and its Board arguing they

used the copyright laws as a way to deny him the right to air the film “Only the Ball was White”

in violation of the First Amendment. He also alleges PhillyCAM breached franchise agreements

between the City and cable providers.

In whatever way he characterizes PhillyCAM’s motivation or reasoning for failing to air

his films, the Supreme Court’s decision in Halleck controls and PhillyCAM is not a state actor as

a matter of law. State action is a required element to plausibly plead a section 1983 claim. We

analyzed Halleck and cases from this District applying it and explained Mr. Wardlaw did not allege

facts suggesting PhillyCAM performs a traditional, exclusive public function required to find a

private entity takes the form of a state actor for purposes of a section 1983 claim.31 Mr. Wardlaw

still does not allege the City compelled PhillyCAM to take a particular action or the City acted

jointly with PhillyCAM or facts to plausibly infer PhillyCAM and its Board are state actors. We

explained this in our March 10, 2022 Memorandum and gave Mr. Wardlaw leave to amend his

complaint if he could do so consistent with Federal Rule of Civil Procedure 11.32 His amended

Complaint is deficient for all the reasons addressed in our earlier memorandum.33

C. We deny Mr. Wardlaw’s request for reassignment to another judge of this

District.

Mr. Wardlaw seeks a “change of venue because the present Court is biased for PhillyCAM

et al.”34 We view his request as asking we disqualify ourselves under Congress’s direction in 28

U.S.C. § 455(a) requiring “any … judge … of the United States shall disqualify himself in any

proceeding in which his impartiality might reasonably be questioned.”35

Reassignment under section 455(a) is “an exceptional remedy” and “generally must

involve apparent bias deriving from an extrajudicial source, meaning something above and beyond

judicial rulings or opinions formed in presiding over the case.”36 Mr. Wardlaw alleges no such

extrajudicial bias. He appears to be unhappy with our decisions. But “adverse rulings–even if

erroneous—are not in themselves proof of prejudice or bias” and our Court of Appeals “ha[s]

repeatedly stated that a party’s displeasure with legal rulings does not form an adequate basis for

recusal ….”37 We deny his motion for reassignment.

III. Conclusion

We dismissed Mr. Wardlaw’s original claims challenging the decision to not broadcast his

film without prejudice six weeks ago but granted him leave to see if he could cure the deficiencies

in his pleading. He needed to support allegations involving the City’s conduct in the alleged

deprivation of his First Amendment rights and allegations supporting a claim PhillyCAM and its

Board of Directors are state actors under the Supreme Court’s Halleck decision. Mr. Wardlaw

failed to do so. We dismiss his amended Complaint with prejudice because he chose not to correct

the deficiencies of his original complaint and further amendment is futile.38

1 Exavier Wardlaw v. City of Philadelphia, No. 18-1128, ECF Doc. Nos. 8, 9; Exavier Wardlaw v.

I.G.A. International Market, et al., No. 21-1547, ECF Doc. No. 5.

2 We dismissed Mr. Wardlaw’s Complaint against the City of Philadelphia and PhillyCAM and its

Board of Directors asserting a deprivation of his First Amendment rights under 42 U.S.C. § 1983

and a disparate treatment claim based on racial and political discrimination in violation of an

unspecified section of the Civil Rights Act of 1964. ECF Doc. Nos. 22, 23. We explained Mr.

Wardlaw failed to state a claim under 42 U.S.C. § 1983 for the deprivation of his First Amendment

rights because (1) he failed to allege the City’s involvement in the challenged conduct; and (2) he

failed to allege PhillyCAM and its Board are state actors required to maintain an action for the

deprivation of his civil rights. With respect to his claims against the City, we explained he failed

to plead facts involving the City in the alleged wrongful conduct. With respect to PhillyCAM and

its Board, we explained the Supreme Court’s 2019 decision in Manhattan Community Access

Corporation v. Halleck, 139 S. Ct. 1921 (2019), held a private entity operating a public access

channel on cable television is not a state actor for purposes of section 1983 liability. We also

explained we could not address the viability of his claims of racially and politically motivated

disparate treatment based solely on a general reference to the Act with no facts to support his

claims. We granted the City’s and PhillyCAM’s motions to dismiss without prejudice to Mr.

Wardlaw to amend his complaint.

3 ECF Doc. No. 30 at 1–5. Mr. Wardlaw submitted two documents we construe as his amended

complaint at ECF Doc. Nos. 26 and 30.

4 ECF Doc. No. 26 at 2.

5 Id.

6 Id.

7 Id. at 3. Mr. Wardlaw first alleged he submitted his film “Underground in Alphabet City” about

the Lower East Side neighborhood in New York City to PhillyCAM for broadcast at some

unspecified time. See ECF Doc. No. 1. PhillyCAM rejected the film allegedly because it “was not

made in Phila[delphia] or by a Philadelphian” but nevertheless aired another film by a different

producer about the Lower East Side. Mr. Wardlaw attributed PhillyCAM’s refusal to air his film

on political and racial motives, treating him differently from other producers. Mr. Wardlaw’s

amended Complaint does not challenge PhillyCAM’s refusal to air “Underground in Alphabet

City” and now focuses on his December 2020 request to air “Only the Ball was White” as a

deprivation of his First Amendment right to free speech.

8 ECF Doc. No. 30 at 6.

9 Id.

10 Id. We are unclear on Mr. Wardlaw’s meaning here. PhillyCAM and its Board construe the word

“leeches” as to possibly mean the doctrine of “laches” in the context of copyright law. See ECF

Doc. No. 32 at 3, n.4. “Laches is ‘a defense developed by courts of equity’ to protect defendants

against ‘unreasonable, prejudicial delay in commencing suit.’” SCA Hygiene Prod. Aktiebolog v.

First Quality Baby Prods., LLC, 137 S. Ct. 954, 960 (2017) (quoting Petrella v. Metro-Goldwyn-

Mayer, Inc., 572 U.S. 663, 667 (2014)).

11 ECF Doc. No. 26 at 2.

12 ECF Doc. No. 30 at 6.

13 Id. at 5.

14 Id. at 6. Mr. Wardlaw attaches several documents, some incomplete, purporting to be the

franchise agreements between the City of Philadelphia and cable companies in the mid-1980s. See

Id. at 7–26 (using the pagination assigned by the CM/ECF docketing system).

15 Id. at 6.

16 ECF Doc. No. 26 at 3.

17 Id.

18 Id.

19 Id. at 4.

20 ECF Doc. Nos. 26, 30.

21 PhillyCAM argues we must dismiss with prejudice his discrimination claims. ECF Doc. No. 32

at 3. It cites Mr. Wardlaw’s argument PhillyCAM declined to air his films because of copyright

concerns. PhillyCAM argues this shows its decision not to air his films is based on a legitimate,

non-discriminatory reason – copyright concerns – versus a discriminatory reason in violation of

the Civil Rights Act. We need not reach this argument as we find Mr. Wardlaw’s amended

Complaint abandoned claims under an unspecified section of the Civil Rights Act of 1964.

22 ECF Doc. Nos. 28, 39, 32.

23 Mr. Wardlaw filed two amendments at ECF Doc. Nos. 26 and 30. The second filing at ECF Doc.

No. 30 did not appear on the docket until after Defendants moved to dismiss. We allowed

Defendants leave to file supplemental memorandum and granted Mr. Wardlaw leave to respond to

the motions to dismiss by April 25, 2022. See ECF Doc. No. 31. Mr. Wardlaw chose not to respond

to the pending motions.

24 Schneyder v. Smith, 653 F.3d 313, 319 (3d Cir. 2011). Under 42 U.S.C. § 1983, a state actor

may be liable for “the deprivation of any rights, privileges, or immunities secured by the

Constitution . . ..” The constitutional deprivation must be made by a person acting under color of

state law. West v. Atkins, 487 U.S. 42, 48 (1988).

25 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

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).

26 ECF Doc. No. 28. The City joins the PhillyCAM Defendants’ briefing in support of their motion

to dismiss.

27 ECF Doc. No. 30 at 19–21; 23–26; and 15–18 (using the pagination assigned by the CM/ECF

docketing system).

28 “CATV” is an acronym for “community antenna television.” By way of background, the Federal

Communications Commission explains: “The Supreme Court affirmed the Commission’s

jurisdiction over cable in United States v. Southwestern Cable Co., 392 U.S. 157 (1968). The

Court ruled that ‘the Commission has reasonably concluded that regulatory authority over CATV

is imperative if it is to perform with appropriate effectiveness certain of its responsibilities.’ The

Court found the Commission needed authority over cable systems to assure the preservation of

local broadcast service and to effect an equitable distribution of broadcast services among the

various regions of the country.” See https://www.fcc.gov/media/engineering/cable-television (last

visited April 22, 2022).

29 ECF Doc. No. 30 at 7–8; 12–14; 10–11.

30 ECF Doc. No. 30 at 9. According to the Federal Communications Commission, “[i]n October

1984, … Congress amended the Communications Act of 1934 by adopting the Cable

Communications Policy Act of 1984. The 1984 Cable Act established policies in the areas of

ownership, channel usage, franchise provisions and renewals, subscriber rates and privacy,

obscenity and lockboxes, unauthorized reception of services, equal employment opportunity, and

pole attachments. The new law also defined jurisdictional boundaries among federal, state and

local authorities for regulating cable television systems.”

See https://www.fcc.gov/media/engineering/cable-television (last visited April 22, 2022).

31 ECF Doc. No. 22.

32 ECF Doc. No. 23.

33 To the extent Mr. Wardlaw now seeks to assert a breach of contract claim based on his allegation

PhillyCAM is in breach of the City’s franchise agreements with cable providers, it fails as a matter

of law. Neither PhillyCAM nor its Board members are parties to the franchise agreements.

fundamental contract law that one cannot be liable for a breach of contract unless one is a party to

that contract.” QVC, Inc. v. Resultyly, LLC, 159 F. Supp. 3d 576, 583–84 (E.D. Pa. 2016) (quoting

Electron Energy Corp. v. Short, 597 A.2d 175, 177 (Pa. Super. Ct. 1991)).

34 ECF Doc. No. 26 at 4.

35 28 U.S.C. § 455(a).

36 Arrowpoint Capital Corp. v. Arrowpoint Asset Mgmt., LLC, 793 F.3d 313, 329 (3d Cir. 2015)

(first quoting United States v. Kennedy, 682 F.3d 244, 258 (3d Cir. 2012), and then quoting United

States v. Bergrin, 682 F.3d 261, 282 (3d Cir. 2012)).

37 Securacomm Consulting, Inc. v. Securacomm, Inc., 224 F.3d 273, 278 (3d Cir. 2000) (citations

omitted).

38 Jones v. Unknown D.O.C. Bus Driver and Transp. Crew, 944 F.3d 478, 483 (3d Cir. 2019).