Moorehead v. SCHOOL DISTRICT OF THE CITY OF ALLENTOWN

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

__________________________________________

MR. JASON MOOREHEAD, :

Plaintiff, :

:

v. : Civil No. 5:22-cv-03959-JMG

:

SCHOOL DISTRICT OF THE CITY OF :

ALLENTOWN, et al., :

Defendants. :

__________________________________________

MEMORANDUM OPINION

GALLAGHER, J. April 17, 2023

I. OVERVIEW

Plaintiff, former middle school teacher for Defendant School District of the City of

Allentown, brings numerous §1983 claims against Defendants alleging he was suspended,

defamed, constructively terminated, and officially terminated by Defendants, the school district,

board members, and administrators, through an unconstitutionally biased process based on

Plaintiff’s support of former President Donald Trump and attendance at the “January 6, 2021 rally

at the Washington Monument.” Compl. at ¶ 3. Plaintiff’s Complaint avers Plaintiff “was at all

times more than 1 mile away from the Capitol Building and the infamous riot that took place

there.” Id. at ¶ 4.

For the reasons explained fully herein, the Court grants in part and denies in part

Defendants’ Motion to Dismiss/Strike Plaintiff’s Complaint [ECF No. 10].

II. BACKGROUND

Plaintiff’s Complaint contains 514 paragraphs and 117 pages of allegations, and attaches

roughly 500 pages of exhibits. See generally Compl. [ECF No. 1-1]. The Complaint’s fact pleading

is constantly interrupted with extensive legal argument, social commentary, and allegations against

non-defendants. Despite the foregoing challenges, the Court does its best to summarize the relevant

allegations contained therein as follows.

Plaintiff’s Complaint brings six (6) counts: Count I - First Amendment Retaliation for

Expression, Assemble, and Petition for Redress of Grievances; Count II – First Amendment

Retaliation for Political Affiliation; Count III – Pennsylvania School Code Section 1122 Violates

the US and Pennsylvania Constitutions’ Guarantee to Freedom of Expression, Association,

Assembly, Petition for Redress of Grievances, and Due Process; Count IV – Procedural Due

Process; Count V – Violations of Fourth, Fifth, and Fourteenth Amendments to the United States

Constitution for Coerced Statements and Unreasonable Search and Seizure on Behalf of the FBI;

Count VI – Declaratory and Equitable Relief – Name – Clearing Hearing. All counts are brought

against each of the nineteen (19) defendants. See Compl. at ¶¶ 336-514 [ECF No. 1-1]

Plaintiff brings claims against the School District of the City of Allentown (“ASD”) and

the Board of School Directors of the City of Allentown (“School Board” or “Board”), along with

two categories of “Individual Defendants”: the “District Officer Defendants” and the “Board

Member Defendants.” Id. at ¶¶ 302-322. Plaintiff’s claims against all Individual Defendants are

brought against them in their individual and official capacities. Id.

The Individual “District Officer Defendants” consist of: Thomas Parker, who was

Superintendent of ASD at all relevant times up until May 1, 2021; Marilyn Martinez, who served

as ASD Interim Superintendent from May 1, 2021 to July 22, 2021; John D. Stanford, who is the

current ASD Superintendent since on or around November 15, 2021; Jennifer Ramos, ASD

Assistant Superintendent; and Anthony Pidgeon, who was the Executive Director of Human

Resources for ASD at all relevant times up until November 2021. Id. at ¶¶ 304-08.

The “Board Member Defendants” include: Nancy Wilt, President of the School Board;

Nicholas Miller, member and former Vice President of the School Board; Lisa A. Conover,

member and current Vice President of the School Board; Phoebe D. Harris, member; Audrey

Mathison, member; Charles F. Thiel, member; Patrick Palmer, member since January 16, 2022;

LaTarsha Brown, member since December 16, 2021; Jennifer Lynn Ortiz, member since

December 16, 2021; Cheryl L. Johnson-Watts, former member who was a member of the School

Board at all relevant times until October 21, 2021; Sara J. Brace, former member who was a

member of the School Board at all times relevant until 2021; and Linda Vega, former member who

was a member of the School Board at all times relevant until December 16, 2021. Id. at ¶¶ 309-

320.

Broadly, this Complaint arises out of Plaintiff’s allegations that all Individual Defendants,

described as “left wing politically,” engaged in and approved of a series of investigations of

Plaintiff, made and facilitated false public statements regarding Plaintiff, and suspended and

ultimately terminated Plaintiff, all in violation of his Constitutional rights, and due to his

conservative political beliefs and support of former President Donald Trump. Id. at ¶¶ 324-331.

Plaintiff, Jason Moorehead, is a self-described conservative Republican who supported

Donald Trump in the 2020 Presidential Election. Id. at ¶ 2. Plaintiff was employed by ASD as a

social studies teacher at Raub Middle School when he attended the January 6, 2021 rally at the

Washington Monument to hear then-President Donald Trump speak. Id. at ¶ 3. Plaintiff avers he

“listened to the speeches, got a hot dog and then boarded a bus back to Allentown, PA. He was at

all times more than 1 mile away from the Capitol Building and the infamous riot that took place.”

Id. at ¶ 4. Plaintiff made several social media posts that day: (1) “[e]arly in the morning he posted

a picture of himself stating ‘doing my civic duty’”; (2) “[a]t 1:45 pm…he posted a picture of

himself getting a hot dog near the Washington Monument. The post said ‘Waiting for a hot dog

during (what hopefully CNN will call) a ‘mostly peaceful protest’ while at the Capital!’”; (3) “On

a post by another user he commented ‘This!’ to a meme which stated: don’t worry everyone the

Capitol is insured”; and (4) “He also commented” stating “Wrong on so many levels, but hilarious

none the less” to “a meme posted by another user. The meme was a picture of the absurd Viking

man who sat on the dias in the Capitol Building, and captioned ‘Protestor Challenges Pelosi for

speaker of house via trial by combat circa 2021.’” Id. at ¶¶ 341-42, 346, 348.

The next day, on January 7, 2021, without prior notice, Defendants suspended Plaintiff

from work indefinitely. Id. at ¶ 31. Plaintiff alleges Defendant Pidgeon e-mailed him that morning

advising he was suspended with pay pending an investigation into Plaintiff’s conduct on January

6, 2021, as social media postings had raised concerns regarding Plaintiff’s involvement in the civil

unrest that occurred on January 6, 2021. Id. at ¶ 31; Ex. 2. Also on January 7, Defendant Parker

published an allegedly “false press release” (“January 7, 2021 Press Release”) on social media that

does not identify Plaintiff by name, but states “On January 7, 2021, the Allentown School District

(ASD) was made aware of a staff member who was involved in the electoral college protest that

took place at the United States Capitol Building on January 6, 2021.” Id. at ¶ 32. The January 7,

2021 Press Release states “[b]ecause of the emotion and controversy stirred by the events of []

January 6, 2021, the teacher has been temporarily relieved of his teaching duties until the School

District can complete a formal investigation of his involvement.” Id. Plaintiff claims the “false

facts” in the Press Release were that “(1) Moorehead was at the US Capitol Building on January

6, 2021, and (2) he was involved in and participated in the protest at the Capitol Building.” Id.

Plaintiff was sent a Garrity notice before a 1:00 p.m. January 8, 2021 meeting with ASD.

Id. at ¶ 45. Plaintiff met via Zoom with the ASD Solicitor and Defendant Pidgeon, who questioned

Plaintiff. Id. at ¶¶ 51-53. Plaintiff explained to Defendant Pidgeon and the ASD Solicitor that “he

was not at the Capitol Building riot and was at all points over 1 mile away from the Capitol

Building on January 6, 2021.” Id. at ¶ 52. Plaintiff alleges the questions asked at the meeting were

not narrow, nor were they related to his official duties, and that, although Plaintiff “was never

informed that he was already under criminal investigation,” the ASD officials were asking him

questions “on behalf of the FBI during a secret criminal investigation.” Id. at ¶ 50.

Also on January 8, 2021, Plaintiff alleges the ASD Solicitor told a local press publication,

“the Morning Call,” that “Plaintiff had been suspended because he had participated in un-

American and subversive doctrines,” which was a “reference to Section 1122 of the School Code”

which “lists one ground for termination [of a teacher] as ‘advocation of or participating in un-

American or subversive doctrines.’” Id. at ¶ 450a.ii.

In late January 2021, Defendants “demanded that Plaintiff turn over” his ASD-

issued/owned electronic devices as part of ASD’s investigation. Id. at ¶ 121; Ex. 11. Defendants

allegedly advised Plaintiff that “if he turned over the devices, and there was no proof he was at the

Capitol Building,” the January 7, 2021 Press Release “would be corrected” and Plaintiff would be

reinstated. Id. at ¶ 122. Plaintiff also alleges he was “falsely assured by Defendants’ solicitor there

was no criminal aspect to this request” but that “the FBI was behind this request and was the entity

searching his devices.” Id. at ¶ 124. Plaintiff alleges the “search of his devices found nothing.” Id.

at ¶ 125.

In advance of a February 11, 2021 Board Meeting, Plaintiff alleges Defendant Board

Members, “especially” Defendants Harris and Conover, colluded “to attack and retaliate against”

Plaintiff “because of their hatred for Plaintiff’s political opinions and affiliations.” Id. at ¶ 77.

Plaintiff alleges Defendant Board Member Conover and “Promise Neighborhoods,” an

organization of which Conover was a board member, started a “Change.Org” petition directed to

the School Board, which Plaintiff alleges was about him, and stated “We the parents and neighbors

are signing to oppose anyone that attended the storming of the capital in Washington. The actions

of the rioters have left our students and families feeling unprotected in their classroom and we

wonder how we can disrupt the school to prison pipeline when those that are paid to protect,

educate and heal us support white supremacy.” Id. at ¶ 79.

Plaintiff alleges another community organization, “POWER Lehigh Valley,” a community

organization “closely connected to” Defendants Conover and Harris, shared the petition on

Facebook and stated “Jason Moorehead, the ASD teacher who participated in the riot at the Capitol

should not be reinstated.” Id. at ¶ 85; Ex. 16 (internal quotations omitted). On February 5, 2021,

Plaintiff alleges Promise Neighborhoods created a Facebook event page for the February 11, 2021

School Board Meeting stating “Join us as we fight to provide a safe learning environment for our

children. Sign the petition. Have your voice heard.” Id. at ¶ 86. Plaintiff alleges Defendant Board

Member Harris shared this Promise Neighborhoods Facebook event page on social media, which

demonstrates “that all Defendants were aware of this campaign to have left-wing community

activists attack Plaintiff at the board hearing using the defamatory lie that Moorehead had rioted

at the Capitol Building.” Id. at ¶ 87.

At the February 11, 2021 Board Meeting Plaintiff alleges that “left-wing activists—at the

instigation of Defendants, and in coordination with them—used lies Defendants had published

about Moorehead to outrageously and falsely attack[] Jason Moorehead.” Id. at ¶ 89. Despite all

Defendants knowing Plaintiff “had been nowhere near the Capitol Building and was not part of

any violence,” Plaintiff alleges that Defendants “never corrected their previous defamation or

cautioned the community” regarding their “attacks” on Plaintiff during the February 11, 2021

Board Meeting. Id. at ¶ 96.

On April 9, 2021, Defendants served Plaintiff with his First Loudermill Notice, which

stated a hearing would be held concerning his social media posting on January 6, 2021. Id. at ¶

127; Ex. 19. Plaintiff contends this “3-month delay between the initial unnoticed suspension and

first Loudermill notice in April 2021 is…a due process violation.” Id. at ¶ 129.

Plaintiff’s First Loudermill Hearing was held on May 5, 2021. Id. at ¶ 142. Plaintiff alleges

this hearing focused on “pretextual reasons” for his discipline. Id.

On July 16, 2021, ASD sent Plaintiff a “Reinstatement Letter” advising that “[a]fter fully

investigating your involvement in the events of January 6, 2021, in Washington D.C., the district

has concluded that your presence in the January 6th gathering did not violate School Board policy

419 relating to teacher non-school activities.” Id. at ¶ 144. The Reinstatement Letter stated Plaintiff

would be removed from his position at Raub Middle School to a “new position and location” to be

determined later. Id. at ¶ 152.

The Reinstatement Letter provided Plaintiff would be reinstated on the condition he take

“‘cultural competence’ classes on African American and Hispanic history.” Id. at ¶ 150. This

condition, Plaintiff alleges, “demonstrates the ideological and political motives” for Plaintiff’s

“discipline, the public attacks on him, and the refusal to correct the defamation and disinformation

Defendants spread about him.” Id. Defendants, according to Plaintiff, deemed Plaintiff “a racist

conservative who must be reeducated.” Id. at 152. Plaintiff alleges the Reinstatement Letter did

not state Defendants would correct the allegedly defamatory January 8, 2021 Press Release and

statements provided to the Morning Call newspaper. Id. at ¶ 145.

Plaintiff alleges the conditions of his reinstatement, namely his removal from his teaching

position at Raub Middle School to an undefined role, and the requirement he attend cultural

competence classes, demonstrated “this purported reinstatement was not actually reinstating him

as a teacher, but instead was an attempt by Defendants to pretend to reinstate him so they could

claim they had not retaliated against him or failed to provide him due process.” Id. at ¶ 152.

Plaintiff rejected ASD’s proposal in the Reinstatement Letter, refusing to take “diversity

training classes if he did something wrong” and stating ASD “has made it impossible for Mr.

Moorehead to return to the school district” because Plaintiff “would be returning to the most hostile

working environment imaginable in the current political climate.” Id. at ¶ 153; Ex. 23.

Defendant Pidgeon allegedly ignored Plaintiff’s objections, and on August 9, 2021 wrote

a letter to Plaintiff advising he must notify Defendants by August 13, 2021 if he intended to return

to work as outlined in the Reinstatement Letter, otherwise Defendants would proceed with

termination. Id. at ¶ 155; Ex. 24. Plaintiff responded by stating he could not return to ASD because

Defendants’ conduct in issuing false public statements via the January 7, 2021 Press Release and

to the Morning Call on January 8, 2021 suggesting he was involved in the Capitol Building riots

was never corrected and created a hostile work environment for Plaintiff. Id. at ¶ 156. Plaintiff

stated he would not “take sensitivity training as if I did something wrong” and that “The District

and Board need to publicly post an apology on the website and social media unequivocally

correcting the record and clearing my name.” Id. Plaintiff contends Defendants proceeded with his

termination for failure to report to work without ever addressing these concerns raised. Id. at ¶ 176.

On September 1, 2021, Plaintiff’s pay was stopped. Id. at ¶ 179. On September 9, 2021,

Plaintiff filed a writ of summons in the Lehigh County Court of Common Pleas, initiating this

action. Id. at ¶ 171: Ex. 26. On September 14, 2021, Plaintiff was sent his Second Loudermill

Notice by Defendant Pidgeon, this for Plaintiff’s termination for failure to report to work. Id. at ¶

172. On September 16, 2021, the District Solicitor e-mailed Plaintiff’s counsel advising that

“Should Mr. Moorehead wish to submit his resignation, the termination process and required

reporting to the Department of Education could be avoided.” Id. at ¶ 174; Ex. 28. This statement,

Plaintiff alleges, made it “quite clear that Defendants were trying to force Plaintiff to resign, so

they could claim he voluntarily quit.” Id. at ¶ 175.

Plaintiff’s Second Loudermill hearing occurred on September 22, 2021. Id. at ¶ 180. At

the hearing, Plaintiff reiterated his objections that “Defendants had defamed Plaintiff, refused to

publicly correct and retract the false statements, and that it was impossible for Moorehead to return

to an unsafe and hostile environment.” Id. at ¶ 181.

On October 12, 2021, Defendant Pidgeon sent Plaintiff a “Statement of Charges” indicating

Defendants were going to terminate him for “willful neglect of duties” for failing to report to his

teaching assignment, and that a Board hearing would take place. Id. at ¶ 185. Prior to the Board

hearing, Plaintiff submitted a memorandum identifying Plaintiff’s contentions that (1) the “willful

neglect of duties” reason for termination was pretextual “to cover up the unconstitutional and

defamatory reasons he was suspended, subjected to a hostile work environment, and can no longer

return” to ASD.; (2) ASD’s refusal to correct the record and prior statements ASD made regarding

Plaintiff contributed to the hostile work environment; (3) the hearing was predetermined; (4) the

Board and hearing officers were biased; and (5) The aforementioned conduct by ASD and the

Board violated Plaintiff’s constitutional rights. Id. at ¶ 192; Ex. 35. Plaintiff also made numerous

procedural objections to the process, including challenging that the District’s Solicitor was serving

as the hearing officer, “and that the board would not even attend the board hearing. Instead, he [the

District Solicitor] would make a recommendation the board would vote on.” Id. at ¶ 195.

On November 22, 2021, at Session One of the Board Termination Hearing, “Plaintiff

submitted briefing on several issues, including the bias of the board and the hearing officer, as well

as Plaintiff’s hostile work environment defense.” Id. at ¶ 208.

On December 14, 2021, at Session Two of the Board Termination Hearing, Assistant

Superintendent and Acting Superintendent Jennifer Ramos allegedly revealed “that the

administration never wanted Moorehead to return and that the ‘reinstatement’ was not sincere.”

Id. at ¶ 238.

On March 16, 2022, Session Three of the Board Termination Hearing, the final session,

was held. Id. at Ex. 50. On July 7, 2022, the District Solicitor, Mr. Sultanik, presented his written

report and recommendation that Plaintiff be terminated, based on the Termination Hearing, to the

School Board. Id. at ¶ 243.

On July 28, 2022, the School Board voted to terminate Plaintiff by a 9-0 vote. Id. At this

July 28, 2022 Board Hearing, Plaintiff addressed the Board, reiterating his arguments that ASD

falsely told the community Plaintiff was involved in violence at the Capitol Building, that ASD

secretly worked with the FBI in its investigation of Plaintiff, without his knowledge, that the Board

“colluded with community groups to attack my character at Board meetings,” and refused to

inform the community that Plaintiff was not involved in the violent activity at the Capitol. Id. at ¶

244.

Plaintiff alleges “All named Defendants were involved in this process, all named

Defendants had final policymaking authority, all named Defendant participated in this disciplinary

process, all named Defendants supervised the disciplinary process against Plaintiff, and all named

Defendants ratified the conduct toward Plaintiff.” Id. at ¶ 298.

Defendants filed a Motion to Dismiss/Strike Pursuant to Fed. R. Civ. P. 12(b)(6) and 12(f)

on October 31, 2022. [ECF No. 10]. Plaintiff filed a Response in Opposition on November 28,

2022. [ECF No. 15]. Plaintiff filed a Notice of Constitutional Question to the Attorney General for

the Commonwealth of Pennsylvania pursuant to Fed. R. Civ. P. 5.1 on December 8, 2022. [ECF

No. 19]. This Court certified Plaintiff’s Constitutional Question on December 16, 2022, and

provided the Attorney General until February 6, 2023 to intervene. [ECF No. 21]. After no such

intervention took place, Plaintiff filed a Supplemental Response in Opposition to Defendants’

Motion to Dismiss on February 28, 2023. [ECF No. 24]. Defendants’ Motion to Dismiss/Strike is

fully briefed and ripe for adjudication.

III. LEGAL STANDARD

“To survive a motion to dismiss, a complaint must contain sufficient factual matter,

accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S.

662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “A claim has

facial plausibility when the plaintiff pleads factual content that allows the court to draw the

reasonable inference that the defendant is liable for the misconduct alleged.” Id. (citing Twombly,

550 U.S. at 556). “Threadbare recitals of the elements of a cause of action, supported by mere

conclusory statements, do not suffice.” Id. (citing Twombly, 550 U.S. at 555). A court is “not

compelled to accept unsupported conclusions and unwarranted inferences, or a legal conclusion

couched as a factual allegation.” Wheeler v. Wheeler, 639 Fed. Appx. 147, 149 (3d. Cir. 2016)

(quoting Morrow v. Balaski, 719 F.3d 160, 165 (3d Cir. 2013)).

“In deciding a Rule 12(b)(6) motion, a court must consider only the complaint, the exhibits

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

documents if the complainant’s claims are based upon these documents.” Mayer v. Belichick, 605

F.3d 223, 230 (3d Cir. 2010). Courts must “accept all factual allegations in the complaint as true,

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

plaintiff may be entitled to relief under any reasonable reading of the complaint.” Id. at 229.

IV. ANALYSIS

a. Plaintiff’s Claims are not Precluded for Failure to File an Appeal to the

Secretary of Education for the Commonwealth of Pennsylvania

Defendants seek dismissal of Plaintiff’s “employment claims” on the basis that Plaintiff

failed to appeal the Board’s termination decision to the Secretary of Education for the

Commonwealth of Pennsylvania (“Secretary”), as required by the Pennsylvania Public School

Code of 1949, 24 P.S. §§11-1127, et seq (the “School Code”). See Defendants’ Motion to Dismiss

(“MTD”) at pgs. 14-15 [ECF No. 10-1]. Indeed, Pennsylvania state courts have recognized that

“appellate jurisdiction from school board decisions dismissing or demoting tenured teachers is

vested in the Secretary, as are appeals.” Kielbowick v. Ambridge Area Sch. Bd., 627 A.2d 276, 278

(Pa. Commw. Ct. 1993); Merritt v. West Mifflin Area School Dist., 424 A.2d 572, 574 (Pa.

Commw. Ct. 1981) (affirming common pleas court dismissal of former school district employee’s

complaint for failure “to pursue her statutory remedy” to “file an appeal with the Secretary of

Education”).

However, this School Code requirement does not bar any of Plaintiff’s claims, because all

of Plaintiff’s federal claims “are brought pursuant to and under 42 U.S.C. §1983.” Compl. at ¶

335. “The Supreme Court has consistently noted that exhaustion of state remedies, whether judicial

or administrative, is not required prior to the commencement of an action under 42 U.S.C. § 1983

in federal court.” Donovan v. Pittston Area Sch. Dist., No. 3:14-1657, 2015 U.S. Dist. LEXIS

78097 at *18 (M.D. Pa. June 17, 2015) (quoting Hochman v. Board of Ed. Of City of Newark, 534

F.2d 1094, 1096 (3d Cir. 1976)). Indeed, the “aim” of 42 U.S.C. §1983 “is to offer a remedy in

federal court for plaintiffs whose civil rights are violated ‘supplementary to any remedy any State

might have.’” Id. (quoting Schimes v. Barrett, No. 3:07-cv-872, 2010 U.S. Dist. LEXIS 30745 at

*15 (M.D. Pa. Mar. 30, 2010). “Part of the reason for this rule was Congress’s recognition of the

central role of federal courts in protecting federal constitutional rights.” Schimes, 2010 U.S. Dist.

LEXIS 30745 at *15.

Directly on point is the court’s holding in Donovan. There, the plaintiff, a school

administrator, brought a due process claim pursuant to §1983 against her school district employer

and the school board members arising out of her alleged demotion. Donovan, 2015 U.S. Dist.

LEXIS 78097 at *1-2. The defendants moved for dismissal, contending plaintiff failed to exhaust

her remedies under the School Code by filing “an appeal to the Secretary of Education.” Id. at *16.

The court denied dismissal on these grounds, holding that “exhaustion of administrative or state

judicial remedies cannot be required before a person may bring a §1983 claim.” Id. (citing

Hochman, 534 F.2d at 1097).

Because Plaintiff’s federal claims are brought pursuant to §1983, and in adherence “to the

repeated and unqualified expressions of the Supreme Court that ‘we have not required exhaustion

of state judicial or administrative remedies’ in suits under §1983” this Court declines to dismiss

Plaintiff’s employment claims and/or claims “about the basis for his termination.” See Hochman,

534 F.2d at 1097 (quoting Steffel v. Thompson, 415 U.S. 452, 472-73 (1974)) (cleaned up); then

Defendants’ MTD at pgs. 15 [ECF No. 10-1].

b. The Court Declines to Dismiss Defendants The School District of the City

Allentown (“ASD”) or Board of School Directors of the School District of the

City of Allentown (‘School Board”) Pursuant to Monell

Defendants contend ASD and the School Board are the “same entity” and Plaintiff’s

Complaint fails to plead a sufficient basis to hold ASD or the Board liable pursuant to Monell v.

Department of Soc. Sevcs., 436 U.S. 658 (1978). See Defendants’ MTD at pg. 17 [ECF No. 10-1].

The purpose of § 1983 is to impose liability on a “person, who under color of any statute,

ordinance, regulation, custom, or usage…subjects, or causes to be subjected, any citizen…to the

deprivation of any rights, privileges, or immunities secured by the Constitution and laws.” 42

U.S.C. § 1983 (emphasis added). Government entities, such as municipalities and school districts,

are a “person” under § 1983. Rogers v. E. Lycoming Sch. Dist., No. 4:17-0696, 2017 U.S. Dist.

LEXIS 183618 at *24 (M.D. Pa. Nov. 6, 2017). Because a “person,” is only liable under § 1983

for their own conduct, it follows that a municipality or school district may only be liable under §

1983 “for their own illegal acts.’” Does v. Se. Delco Sch. Dist., 272 F. Supp. 3d 656, 667 (E.D. Pa.

2017) (quoting Connick v. Thompson, 563 U.S. 51, 60 (2011)) (emphasis in original). Accordingly,

just because a school district’s employee commits an unconstitutional act does not mean the school

district itself “was the moving force behind the injury alleged.” Chambers v. Sch. Dist. of Phila.

Bd. of Educ., 587 F.3d 176, 193 (3d Cir. 2009). Therefore, holding a school district liable under §

1983 requires more than allegations of respondeat superior liability. Brown v. Pa Dep’t of Health

Emergency Med. Servs. Training Inst., 318 F.3d 473, 482 (3d Cir. 2003); Dorley v. S. Fayette Twp.

Sch. Dist., 129 F. Supp. 3d 220, 240 (W.D. Pa. 2015) (“it is well established that a School District,

like a municipality, cannot be liable solely as an employer because there is no respondeat superior

theory of municipal liability in § 1983 actions.”) (quotations and citation omitted).

To allege a deprivation of rights was caused by the school district’s own acts, and that the

district itself “was the moving force behind the injury alleged,” a plaintiff must allege it was the

school district’s own “official policy and/or custom” that “cause[d] an employee to violate another

person’s constitutional rights.” Chambers., 587 F.3d at 196, then Estate of Massey v. City of Phila.,

118 F. Supp. 3d 679, 696 (E.D. Pa. 2015). A school district’s own “policy” is made “when a

decisionmaker possessing final authority to establish municipal policy with respect to the action

issues an official proclamation, policy, or edict.” Kneipp v. Tedder, 95 F.3d 1199, 1212 (3d Cir.

1996). The Third Circuit has held “an official with policymaking authority can create official

policy, even by rendering a single decision.” McGreevy v. Stroup, 413 F.3d 359, 367-68 (3d Cir.

2005). See also Connick v. Thompson, 563 U.S. 51, 61 (2011) (holding “[o]fficial municipal policy

includes the decisions of a government’s lawmakers, the acts of its policymaking officials, and

practices so persistent and widespread as to practically have the force of law.”) (emphasis added).

This logic is consistent with the purpose of § 1983: to impose liability on the person, in

this case, the school district, for its own illegal acts. The actions of an individual with policymaking

authority at the school district can much more fairly be said to constitute the actions of the school

district itself, as opposed to the actions of a school district employee with no authority to make or

issue school district policy.

Defendants’ Motion to Dismiss claims there is no basis to hold ASD liable for the

allegations in Plaintiff’s Complaint under Monell because Plaintiff “fails to identify a specific

policy or custom or adequately allege that any individual defendants were following this policy

that caused or resulted in a violation.” See MTD at pg. 17 [ECF No. 10-1]. However, Plaintiff

argues ASD is liable for all conduct alleged in the Complaint under Monell because the conduct at

issue was perpetrated by the “superintendent, assistant superintendent, Executive HR director, the

district solicitor, and the school board” all of whom, Plaintiff argues, are “high -ranking officials

and final policymakers who participated in the conduct at issue, supervised it, and ratified it.” See

Plaintiff’s Response to MTD at pg. 9 [ECF No. 15].

Plaintiff’s contention that his constitutional rights were violated by “final policymakers”

for ASD is sufficient to state a claim for Monell liability if supported by sufficiently pled facts.

Indeed, “[a] single act may represent government ‘policy’ for Monell purposes when such act is

made by someone possessing ‘final authority to establish municipal policy with respect to the

action ordered.’” Flood v. Shark, 400 F. Supp. 3d 295, 307 (W.D. Pa. 2019) (quoting Pembauer v.

City of Cincinnati, 475 U.S. 469, 480-81 (1986)). “In order to ascertain who is a policymaker a

court must determine which official had final, unreviewable discretion to make a decision or take

action.” McGreevy, 413 F.3d at 369.

Plaintiff’s Complaint pleads that all Defendants, including the School Board and Board

Member Defendants, “were aware of, approved, and ratified the public statements by the District

on January 7, 2021, and suspension of Plaintiff without Loudermill notice or hearing on January

7, 2021…the public statements on January 8, 2021, and also the public statements made about Mr.

Moorehead in early February 2021, and at the February 11, 2021 board hearing.” Compl. at ¶ 324

[ECF No. 1-1]. “[A]ll Defendants” the Complaint alleges, “supervised, participated in, and ratified

the course of conduct against Moorehead from January 6, 2021, to present.” Id. Plaintiff’s

Complaint further alleges “the actions by Defendants were not that of a rouge employee, but were

entirely sanctioned by the District, Board, and chief executive at all points, from January 7, 2021

to present” and that “the District and Board ratified that conduct by continuing and participating

in the persecution of Plaintiff.” Id. at ¶¶ 329, 332. Moreover, Plaintiff’s Complaint contains

numerous specific allegations of conduct by the School Board, such as: allegations the School

Board voted to terminate Plaintiff for a pretextual reason (Id. at ¶ 380), that the School Board

intentionally spread the false claim Plaintiff “was at the Capitol Building” throughout the ASD

community (Id. at ¶¶ 96, 110), that Board Member Defendant Conover started a petition targeting

Plaintiff that was shared on social media by Board Member Defendant Harris (Id. at ¶¶ 83, 86-87),

that the Board hearing process was pretextual and improper because “the allegedly neutral hearing

officer [was] the Board’s own attorney,” that “the Board did not even hear the matter,” that the

Board’s attorney, who served as both fact finder and hearing officer in the Termination Hearing,

“ruled that Plaintiff is not entitled to a fair, impartial and unbiased board hearing” (Id. at ¶ 203),

that the “Board was involved with suspending and attacking Plaintiff, that the “Board is

unambiguously politically biased against Mr. Moorehead,” and that the “hearing result was

predetermined as was the Loudermill hearing, evidenced in part by the cutting of [Plaintiff’s] pay

two weeks before the Loudermill notice” (Id. at ¶ 210).

Because Plaintiff alleges the decisions that deprived him of his Constitutional rights were

either made or ratified by the School Board, Plaintiff has done enough, at this stage, to state a claim

giving rise to Monell liability as to ASD. School boards and their members are policymaking

officials for their school district.1 See LaVerdure v. County of Montgomery, 324 F.3d 123, 126 (3d

Cir. 2003) (acknowledging “School Board members” are “entrusted with a policymaking role for

the School District.”) (quoting Zugarek v. S. Tioga Sch. Dist., 214 F. Supp. 2d 468, 479 (M.D. Pa.

2002)). Because “[a] municipality’s properly-constituted legislative body is authorized to act for

the municipality…a single decision by such a body may subject the municipality to § 1983

liability.” Smith v. Cent. Dauphin Sch. Dist., 2007 U.S. Dist. LEXIS 57112 at *6 (M.D. Pa. Aug.

6, 2007). A district’s school board is considered “the legislative body for the School District.” Id.

at *6 (citing 24 Pa. Cons. Stat. Ann. §§ 2-211, 5-508). Therefore, proof the school board “has

intentionally deprived a plaintiff of a federally protected right necessarily establishes that the

1 Even if additional evidence produced in later stages of litigation demonstrates the School

Board and other Defendants did not possess final policymaking authority at the times relevant, at

the motion to dismiss stage, the Court accepts as true Plaintiff’s uncontroverted assertions that the

School Board possessed policymaking authority regarding the investigation, suspension, and

termination of Plaintiff, and either participated in or ratified the alleged illegal conduct. See Compl.

at ¶¶ 328-333 [ECF No. 1-1].

municipality acted culpably.” Smith, 2007 U.S. Dist. LEXIS 57112 at *6 (quoting Bd. of County

Comm’rs v. Brown, 520 U.S. 397, 405 (1997)).

A school board may subject itself and/or the school district to Monell liability when it

dismisses an employee, approves a suspension, or ratifies a subordinate’s actions that violate the

plaintiff’s constitutional rights. See Ditzler v. Hous. Auth., 171 F. Supp. 3d 363, 368 (M.D. Pa.

2016) (holding plaintiff provided sufficient evidence to support a finding school board’s

“deliberate decision to terminate the plaintiff qualifies as policy for the purpose of determining

Monell liability.”); Starbuck v. Williamsburg James City Cty. Sch. Bd., 28 F.4th 529, 536 (4th Cir.

2022) (“The School Board’s approval of a suspension allegedly imposed to punish assertedly

protected speech is a decision of a body with final policymaking authority. Monell teaches that

such a decision gives rise to the School Board’s potential liability under 42 U.S.C. § 1983.”);

Goodell v. Columbia Cnty. Pub. Transp., No. 2:20-cv-00226, 2021 U.S. Dist. LEXIS 263887 at

*34-35 (E.D. Wash. Feb. 16, 2021) (holding plaintiff’s theory of Monell liability based on public

transportation board’s alleged ratification of general manager’s conduct survives motion to dismiss

since “[a] municipality may be held liable for a constitutional violation if a final policymaker

ratifies a subordinate’s actions.”) (citing Lytle v. Carl, 382 F.3d 978, 987 (9th Cir. 2004)); Shields

v. Penn Grove-Carneys Point Reg’l Sch. Dist., No. 14-2106, 2016 U.S. Dist. LEXIS 26675 at *10

(D. N.J. Mar. 1, 2016) (“Accordingly, even one decision by a school board, if it were a final

policymaker, would render its decision district policy.”); Hart v. W. Mifflin Area Sch. Dist., No.

16-1066, 2016 U.S. Dist. LEXIS 169473 at *12 (W.D. Pa. Dec. 8, 2016) (denying motion to

dismiss §1983 due process claim against school district pursuant to Monell, holding a “Board of

School Director’s decision to terminate Plaintiff without proper pre-termination hearing

constitutes an action by a policymaker with ‘final authority’ under Monell, Pembaur, and their

progeny.”).

Moreover, Defendants’ reliance on Dorley v. South Fayette Twp. Sch. Dist. is misplaced.

In Dorley, the court held a plaintiff’s § 1983 claims against a school district based on the conduct

of three members of the high school coaching staff did not support a claim for Monell liability.

Dorley v. South Fayette Twp. Sch. Dist., 129 F. Supp. 3d 220, 241-42 (W.D. Pa. Sept. 4, 2015).

Instead, the court held, the claims sounded in respondeat superior, because the plaintiff failed to

plead the coaches acted pursuant to a school district custom or “that either one or more of the

football coach Defendants was factually and legally the final decision-maker possessing

unreviewable authority in that regard, or that the final policy-makers within the School District

directed, or specifically knew of and acquiesced to the challenged conduct.” Dorley v. South

Fayette Twp. Sch. Dist., 129 F. Supp. 3d 220, 241 (W.D. Pa. Sept. 4, 2015). Here, unlike in Dorley,

Plaintiff, Mr. Moorehead, brings claims based on the alleged conduct of the School Board and

other school administrators, not football coaches, who Plaintiff plausibly alleges have final

policymaking authority for ASD. Plaintiff’s Complaint plausibly pleads that ASD’s final

policymakers participated in, acquiesced to, and ratified the alleged deprivation of his

constitutional rights.

Because Plaintiff plausibly claims the alleged deprivations of his Constitutional rights were

either directed, approved, or ratified by the Board of Directors, the Court declines to dismiss ASD

as a defendant pursuant to Monell.

c. The Court Grants Defendants’ Motion to Dismiss Individual Capacity Claims

Brought Against Defendants Johnson-Watts, Brace, and Vega Only. The

Qualified Immunity Defense fails, at the Motion to Dismiss Stage, as to All

Other Individual Defendants

A qualified immunity defense will be upheld on a motion to dismiss “only when the

immunity is established on the face of the complaint.” Ecurie Reve Avec Moi Inc. v. N.J. Racing

Comm’n, 767 Fed. Appx. 233, 237 (3d Cir. 2019). “If the facts of the complaint are insufficient to

establish a qualified immunity defense, the motion must fail.” Id. Accordingly, the appropriate

inquiry at this stage is if “whether the Complaint, on its face, demonstrates” the Individual

Defendants “did not violate a clearly established constitutional right.” Id. However, in conducting

this inquiry, the Court is not required “to accept unsupported conclusions and unwarranted

inferences or a legal conclusion couched as a factual allegation.” Id. at 806.

“In resolving claims of qualified immunity, a court must decide: 1) whether the facts

alleged or shown by a plaintiff make out a violation of a constitutional right, and 2) whether that

right was clearly established at the time of the defendant's misconduct.” Hammond v. Chester

Upland Sch. Dist., No. 13-6209, 2014 U.S. Dist. LEXIS 128679 at *37 (E.D. Pa. Sept. 9, 2014).

“While ‘qualified immunity issues may require the kind of factual context that is available

only on summary judgment or at trial,’ courts are ‘obligated to address’ qualified immunity

defenses raised in a motion to dismiss.” Doe v. Small, No. 1:21-cv-11189, 2023 U.S. Dist. LEXIS

18367 at *28 (D. N.J. Feb. 2, 2023) (quoting Est. of King v. City of Jersey City, No. 2:15-cv-6868,

2018 U.S. Dist. LEXIS 109031 at *7 (D.N.J. June 29, 2018)). See also Black & Davison v.

Chambersburg Area Sch. Dist., No. 1:17-cv-688, 2019 U.S. Dist. LEXIS 11154 at *12 (M.D. Pa.

Jan. 25, 2019) (“Qualified immunity does not protect a state actor’s knowing violation of the

law…determination of the objective reasonableness of a defendant’s judgment about an open legal

question may require resolution of factual disputes.”).

Defendants contend all Individual Defendants are entitled to Qualified Immunity and High

Public Official Immunity. Defendants’ MTD at pg. 36. As an initial matter, Individual Defendants’

assertion of High Public Official Immunity is inapplicable to Plaintiff’s claims because High

Public Official Immunity applies only to Pennsylvania state law claims. Kohn v. Sch. Dist., No.

1:11-cv-109, 2012 U.S. Dist. LEXIS 63751 at *29 (M.D. Pa. May 7, 2012) (“the state-law doctrine

of high public official immunity shields officials only from state-law claims, not federal ones.”).

Here, Plaintiff brings federal law claims pursuant to § 1983.

As to Qualified Immunity, at this early stage, Plaintiff’s Complaint sufficiently pleads all

Individual Defendants had personal involvement in the knowing violation of Plaintiff’s

constitutional rights, which were clearly established at the time of Defendants’ alleged misconduct.

Starting with the District Officer Defendants first, Plaintiff pleads the Superintendent

Defendants Parker, Martinez, Stanford, and Ramos were personally involved in the knowing

violation of Plaintiff’s constitutional rights, in that the Superintendents had involvement in the

suspension, allegedly sham reinstatement, and/or constructive termination of Plaintiff. Compl. at

¶¶ 5, 32, 35, 61, 237-41, 307, 308 Ex. 34, 43. Plaintiff also sufficiently pleads individual capacity

claims against Defendant Pidgeon, who was the Executive Director of Human Resources for ASD,

and who allegedly informed Plaintiff of his suspension on January 7, 2021, attended and

questioned him at the Zoom meeting on January 8, 2021, and demonstrated “malice and animosity”

toward Plaintiff, and demanded Plaintiff return to work on August 9, 2021. Id. at ¶¶ 31, 51, 155.

As to the Individual Board Member Defendants, Plaintiff sufficiently pleads individual

capacity claims against Board Member Defendants who were voting members of the Board as of

July 28, 2022. Plaintiff alleges these Board Member Defendants knowingly violated Plaintiff’s

constitutional rights by voting 9-0 to terminate him from employment. Compl. at ¶ 243. Plaintiff’s

Complaint plausibly alleges that prior to the Board’s 9-0 vote to terminate Plaintiff, Plaintiff shared

countless legal and factual argument to the Board alleging the Board was politically and financially

biased, and that his suspension, the ASD press releases, and pending termination were issued due

to his political affiliation and/or expression and that any other reasons proffered for such actions

were pretextual. See generally id.

Defendants contend Plaintiff fails to plead sufficient allegations that “most of the

Defendants, such as Ortiz, Brown and Palmer…undertook any individual action.” See Defendants’

MTD at pg. 29 n.36 [ECF No. 10-1]. However, Plaintiff’s Complaint plausibly alleges that

Defendants Ortiz, Brown, and Palmer were aware of ASD’s and the School Board’s previous

allegedly unconstitutional and retaliatory conduct and nevertheless voted to terminate Plaintiff on

July 28, 2022. Compl. at ¶ 243. A school board’s unanimous vote to terminate an employee

sufficiently pleads that each voting board member “was personally involved in the termination

decision.” Black & Davison v. Chambersburg Area Sch. Dist., No. 1:17-cv-688, 2019 U.S. Dist.

LEXIS 11154 at *13 (M.D. Pa. Jan. 25, 2019).

However, Plaintiff fails to plead sufficient facts to allege the Individual Board Member

Defendants who were not voting members of the Board as of July 28, 2022 knowingly violated

Plaintiff’s constitutional rights. “To state a claim for individual liability under Section 1983,

Plaintiff must show that the individual defendants 'personally participated in violating his rights,

or that they directed others to violate, or that they had knowledge of and acquiesced in their

subordinates’' violations.” Gayles v. Hillside Bd. of Educ., 2022 U.S. Dist. LEXIS 67293 at *12

(D. N.J. Apr. 11, 2022) (quoting Ivan v. County of Middlesex, 595 F. Supp. 2d 425, 479-80 (D.N.J.

2009)).

In Deltondo v. Sch. Dist. of Pittsburgh, the court dismissed a plaintiff’s claims brought

against school board members in their individual capacities, holding “individual School board

members cannot terminate a teacher’s employment and can only do so by voting as a group.” 2:22-

350, 2023 U.S. Dist. LEXIS 15133 at *35 (W.D. Pa. Jan. 30, 2023). Therefore, “[a] single member

of a governing body cannot be held liable for decisions that are made by the body as a whole.” Id.

A Plaintiff “must plead facts demonstrating the specific personal involvement of each

Individual Defendant as to any Constitutional deprivations” alleged. Caristo v. Blairsville-

Saltsburg Sch. Dist., 370 F. Supp. 3d 554, 569 n.21 (W.D. Pa. 2019). “Group pleading as to such

matters will not suffice.” Id. "It is not the Court's job to laboriously search the Complaint for factual

assertions that could, in theory, be used to support one legal claim or another. District judges are

not archeologists. They need not excavate masses of papers in search of revealing tidbits.” K.J. v.

Greater Egg Harbor Reg’l High Sch. Dist. Bd. of Educ., No. 14-145, 2015 U.S. Dist. LEXIS

112960 at *20 (D.N.J. Aug. 26, 2015).

The Court finds the recent holding in Pierro v. Hudson City Sch. Dist., No. 1:22-cv-670,

2023 U.S. Dist. LEIXS 55973 (N.D.N.Y. Mar. 31, 2023) persuasive. In Pierro, the plaintiff

brought, among other claims, § 1983 claims against her former employer, the Hudson City School

District, the Hudson City School Board, and the members of the school board, in their individual

capacities. Id. at *1-2. The plaintiff, Pierro, alleged she was sexually harassed by co-workers,

reported the harassment to her superiors, and in retaliation was given additional job duties without

a pay increase or promotion, and one of her alleged harassers was promoted to become her

supervisor. Id. at *4-5. Pierro alleged that when the harassment continued she made a second, and

then third complaint to her supervisors. Id. at *5. Thereafter, Pierro alleged the Hudson City School

Board placed her on administrative leave and suspended her without pay. Id. Pierro alleged the

Hudson City School District advised that her allegations were “false and defamatory.” Id. Then,

Pierro tendered a letter of resignation, which she alleges the Hudson City School Board refused to

accept in order to “pursue termination if she did not rescind her allegation[s].” Id. at *16.

The defendants moved to dismiss on numerous grounds. The court declined to dismiss

Hudson City School District and the Hudson City School Board as defendants pursuant to Monell,

based on the complaint’s allegations that the Hudson City School Board’s decisions to suspend the

plaintiff without pay and appoint one of her alleged harassers as her supervisor “were done with

knowledge of Pierro’s reports of harassment” which “plausibly suggests that the Board of

Education,” the final policymakers of the Hudson City School District, were “not merely negligent,

but made a conscious choice while aware of Pierro’s reports.” Id. at *21-22.

However, the court dismissed Pierro’s § 1983 claims brought against the members of the

Hudson City School Board in their individual capacities because Pierro failed to identify “the

specific actions of individual members of the Board Education, but rather, refer[red] to the Board

of education as a collective group.” Id. at *17. This, the court held, constituted “impermissible

group pleading” and the complaint therefore failed to “specifically indicate the extent of any

individual Board Member’s involvement in the complained-of unconstitutional conduct.” Id.

(quoting Arnold v. Town of Camilus, No. 5:20-cv-1364, 2023 U.S. Dist. LEXIS 39933 at *12

(N.D.N.Y. Mar. 9, 2023)). Moreover, the court held, the plaintiff “fail[ed] to articulate what

information was relayed to each individual Board member and how each member voted. Thus,

Pierro’s allegations of actions taken by the individual members of the Board are not sufficient to

plausibly allege personal involvement and Pierro’s Section 1983 claims against the individual

members of the Board must be dismissed.” Id. at *18 (emphasis added).

Here, because Plaintiff fails to allege Board Member Defendants who did not vote to

terminate Plaintiff, Defendants Cheryl L. Johnson-Watts, Sara J. Brace, and Linda Vega, were

personally involved in the alleged deprivation of Plaintiff’s rights beyond impermissible “group

pleading,” the Court dismisses all individual capacity claims against these Defendants. See Cupp

v. Cty. Of Lycoming, No. 3:20-cv-001784, 2021 U.S. Dist. LEXIS 188866 at *13 (M.D. Pa. Sept.

30, 2021) (“Group pleading, such as…lumping sixteen defendants together without setting forth

what each defendant is alleged to have done, is impermissibly vague.”); Mills v. Ethicon, Inc., 406

F. Supp. 3d. 363, 386-87 (D. N.J. 2019) (“Alleging that ‘Defendants’ undertook certain illegal

acts—without more—injects an inherently speculative nature into the pleadings, forcing both the

Defendants and the Court to guess who did what to whom when. Such speculation is anathema to

contemporary pleading standards”).

d. All Official Capacity Claims Plead Against All Individual Defendants Are

Dismissed

Defendants also contend Plaintiff’s claims brought against Individual Defendants in their

“official capacity” should be dismissed as they are “effectively identical to the claims brought

against the District.” Defendants’ MTD at pg. 37 [ECF No. 10-1].

Plaintiff responds that the Individual Defendants are not sued in their official capacities for

any legal claims for damages, but only for claims for equitable relief, which is permitted. See

Plaintiff’s Response in Opposition to MTD at pg. 26 [ECF No. 15]. Individual Defendants,

Plaintiff avers, “are being sued in their official capacity for the relief requested in the counts for a

name-clearing hearing and declaring section 1122 unconstitutional.” Compl. at ¶ 321. Because, as

explained infra, the Court dismisses Plaintiff’s section 1122 claim as moot, the Court need only

address whether Plaintiff’s official capacity claims against Defendants insofar as Plaintiff seeks a

name-clearing hearing are permissible.

School board members, “in their official capacities, are part of the district itself.” Donovan,

2015 U.S. Dist. LEXIS 78097 at *12-13. Therefore, claims against school board members in their

official capacities are redundant of claims asserted against the school district itself. Id. at *13.

However, §1983 claims may be brought against a government employee in their official capacity

only where “prospective injunctive relief” is sought. Graham v. State of N.J., New Jersey Dep’t of

Corr., No. 21-20773, 2022 U.S. Dist. LEXIS 158971 at *12 (D. N.J. Sept. 2, 2022) (emphasis in

original).

Here, the injunctive relief Plaintiff seeks, a name-clearing hearing for alleged due process

violations committed in the now-complete disciplinary process of Plaintiff, is retrospective, not

prospective. Doe v. Bowling Green State Univ., 2022 U.S. Dist. LEXIS 179939 at *15 (N.D. Ohio

Sept. 30, 2022) (Plaintiff’s request for name-clearing hearing due to procedural due process

violations occurring in disciplinary process did not seek prospective relief because “[w]hile the

effects of these past alleged violations may be ongoing in the form of [plaintiff’s] disciplinary

penalty, the alleged violative act itself is done, and as applied to [plaintiff], will not recur.”).

Accordingly, the Court grants Defendants’ motion to dismiss all remaining official capacity claims

brought against the Individual Defendants.

e. Count I: 42 U.S.C.S. § 1983: Plaintiff States a Claim for First Amendment

Retaliation for Free Speech Expression

To state a First Amendment retaliation claim pursuant to §1983, a plaintiff must allege that

“(1) he engaged in ‘constitutionally protected conduct,’ (2) the defendant engaged in ‘retaliatory

action sufficient to deter a person of ordinary firmness from exercising his constitutional rights,’

and (3) ‘a causal link existed between the constitutionally protected conduct and the retaliatory

action’” Baloga v. Pittston Area Sch. Dist., 927 F.3d 742, 752 (3d Cir. 2019) (quoting Palardy v.

Twp. of Millburn, 906 F.3d 76, 80-81 (3d Cir. 2018)). Here, Defendants only challenge Plaintiff’s

pleading of the third (3) element. See Defendants’ MTD at pg. 18 [ECF No. 10-1]. The third (3)

element is a “factual issue.” Baloga, 927 F.3d at 761.

Defendants argue Plaintiff fails to state a claim for First Amendment Retaliation because

there is “no causal connection between the protected activity and the retaliatory action” since

“[o]ver a year and a half lapsed between Plaintiff’s alleged protected activity and the Board’s

decision to terminate Plaintiff for abandoning his teaching position.” Id. at pg. 18 [ECF No. 10-

1]2. Plaintiff’s Response claims there is a temporal connection between the protected activity and

retaliatory action because Defendant was first suspended on January 7, 2021, one day after

attending the “January 6 Rally” and thereafter a series of retaliatory conduct took place, including

Defendants’ alleged collusion “with left-wing community groups to viciously defame Plaintiff at

a school board meeting in February 2021” and the fact that Plaintiff “was kept suspended and

never reinstated for that entire 1.5 years.” Plaintiff’s Response in Opposition to MTD at pg. 10

[ECF No. 15].

Plaintiff successfully states a claim for First Amendment Retaliation based on his

attendance at the January 6, 2021 rally at the Washington Monument and expression of support

for then-President Trump. Defendants do not contest Plaintiff (1) pleads he engaged in activity

protected by the First Amendment, consisting of Plaintiff’s “attendance and political support of

the January 6, 2021 Rally, and social media posts and two social media comments made by

Plaintiff on January 6, 2021.” Compl. at ¶ 339. See Lederman v. Benepe, No. 12 Civ. 6028, 2014

U.S. Dist. LEXIS 44057 at *29 (S.D.N.Y. Mar. 28, 2014) (holding Plaintiff attending public

lecture “was engaged in expressive political speech” and “The First Amendment protects political

2 This language in Defendants’ Brief appears to quote case law, but no citation follows

the quoted text.

demonstrations and protests – activities at the heart of what the Bill of Rights was designed to

safeguard.”).

As to the second (2) element, Plaintiff pleads numerous alleged forms of retaliatory

conduct. “Although the nature of the retaliatory acts committed by the public employer must ‘be

more than de minimis…the threshold is ‘very low.’” Baloga, 927 F.3d at 758 (quoting O’Connor

v. City of Newark, 440 F.3d 125, 128 (3d Cir. 2006)). “Indeed,’ the Third Circuit has recognized

“an act of retaliation as trivial as failing to hold a birthday party for a public employee when

intended to punish her for exercising her First Amendment right may suffice.” Id. (quoting Suppan

v. Dadonna, 203 F.3d 228, 234 (3d Cir. 2000)).

Here, Plaintiff alleges that one day after he engaged in the protected activity, Defendants

suspended him and issued false statements on social media, the web, and to the press suggesting

he was involved in violent and criminal activity. Compl. at ¶ 351. Plaintiff alleges Defendants

considered “Plaintiff’s support for President Trump a reason to discipline Plaintiff and publicly

defame and stigmatize him as an ‘insurrectionist,’ ‘terrorist,’ ‘white supremacist,’ ‘racist,’ ‘bigot,’

‘biased educator,’ and a host of other vile accusations” Id. at ¶ 356. Plaintiff alleges Defendants

“essentially admitted to First Amendment violations” by stating Plaintiff “was being disciplined

and investigated for participating in un-American and subversive doctrines” and that the adverse

actions by Defendants against Plaintiff “were because of the content of his social media posts.” Id.

at ¶ 378. Indeed, Defendants’ own briefing states that the “Administration’s decision to suspend

and investigate the extent of Plaintiff’s activity was justified when what he posted was perceived

by members of a largely black and brown community as an endorsement of white supremacist

ideology.” Defendants’ MTD at pg. 21 [Doc. 10-1]. The Court finds these alleged acts of retaliation

alone are enough to sufficiently plead the second (2) element of Plaintiff’s First Amendment

Retaliation claim.

In addition, however, Plaintiff also alleges Defendants retaliated against him in the form

of a constructive discharge. Plaintiff alleges Defendants’ retaliatory conduct began on January 7,

2021 and continued through a series of causally related conduct until and beyond his termination.

Id. at ¶ 380-81. Although Defendants allege Plaintiff’s termination was “for abandoning his

teaching position,” Plaintiff alleges he was “constructively terminated” after Defendants “created

intolerable working conditions which constitute a constructive termination3, which started when

they publicly attacked and defamed him” on January 7, 2021. See Defendants’ MTD at pg. 10

[ECF No. 10-1]; then Compl. at ¶ 288 [ECF No. 1-1].

Although Defendants suggest otherwise, Plaintiff need not plead a separate “constructive

discharge count.” Rather, federal courts consistently recognize that an employee’s constructive

discharge may satisfy the requirements of pleading an adverse or retaliatory employment action in

violation of the First Amendment. See Genova v. City of Glen Cove, No. 13-cv-4088, 2017 U.S.

Dist. LEXIS 25730 at *51 (E.D.N.Y. Feb. 22, 2017) (Plaintiff’s allegations “that he suffered a

constructive discharge…due to his political affiliations…if true, would satisfy the requirements of

an adverse employment action.”); Bailor v. Taylor, 170 F. Supp. 466, 471 (D. Del. 2001)

(“Constructive discharge occurs when an employer’s unlawful retaliatory conduct is so intolerable

that a reasonable person subject to such retaliation would feel compelled to resign.”); Rugamba v.

CRST, Inc., No. 20-2934, 2022 U.S. App. LEXIS 2975 at *3 (3d Cir. Feb. 2, 2022) (“In order to

3 Defendants’ only challenge to this allegation of constructive termination is an incomplete

footnote stating, “Plaintiff alludes to a constructive discharge claim though he did not plead a count

alleging same. Moreover, an ‘employees subjective perception’” – and the footnote cuts off. See

Defendants’ MTD at pg. 11 [ECF No. 10-1].

state a claim based on a constructive discharge” a plaintiff must “allege that his employer made

working conditions so intolerable that he was forced to resign.”) (internal quotations and citation

omitted).

Here, Plaintiff alleges he was constructively terminated because Defendants created

“intolerable working conditions” by: publishing a false press release allegedly suggesting Plaintiff

was “involved in the…protest…that took place at the United States Capitol Building” when

Plaintiff alleges he was at all times over one (1) mile away from the Capitol Building, and by

making statements to the Morning Call on January 8, 2021 that suggested Plaintiff “participated

in un-American and subversive doctrines,” as well as through the alleged involvement of Board

Members Harris and Conover in creating and circulating a Facebook petition directed to the School

Board opposing “anyone that attended the storming the capital in Washington” for the purpose of

“whip[ping] up community and local activists in advance of a February 11, 2021 board meeting,

so that they would defame and attack Plaintiff at the board meeting using the defamatory lies

Defendants had been spreading about Plaintiff. ” Compl. at ¶¶ 287; 52; 66; 83; 288.

All of these actions, Plaintiff alleges, caused “intolerable,” “hostile” and “unsafe” working

conditions. Id. at ¶¶ 286-88. At this early motion to dismiss stage, the Court finds that Plaintiff has

plead facts, which, if true, plausibly allege constructive discharge. Having been constructively

discharged “as of January 7, 2021, and no later than February 11, 2021,” Plaintiff alleges his formal

termination “over a year later” was “for a pretextual reason.” Id. at ¶ 292.

As to the third (3) element, a plaintiff establishes causation by proving either “(1) an usually

suggestive temporal proximity between the protected activity and the alleged retaliatory action, or

(2) a pattern of antagonism coupled with timing to establish a causal link. In the absence of that

proof, the plaintiff must show that from the ‘evidence gleaned from the record as a whole’ the trier

of fact should infer causation.” Beyer v. Borough, 428 Fed. Appx. 149, 154-55 (3d Cir. 201)

(quoting Lauren W. v. DeFlaminis, 480 F.3d 259, 267 (3d Cir. 2007)). “The decision-makers must

be aware of the protected conduct for it to be a substantial or motivating factor in a decision.” Id.

at 155.

Here, Plaintiff alleges that Defendants’ retaliatory conduct began the day after his protected

political speech on January 6, 2021. Compl. at ¶ 31 [ECF No. 1-1]. Plaintiff alleges that on January

7, 2021 Defendants suspended Plaintiff and published a false press release, which Defendants

refused to correct, suggesting Plaintiff was at the U.S. Capitol Building. Id. at ¶¶ 31-32. On January

8, 2021, Plaintiff alleges Defendants told the Morning Call that Plaintiff “was being disciplined

and investigated for participating in un-American and subversive doctrines.” Id. at ¶ 379. Plaintiff

further alleges that two Board members orchestrated “defamatory attacks at the February 11, 2021

board meeting on Plaintiff” regarding his conduct on January 6, 2021, and that Plaintiff was

ultimately terminated “for the pretextual reason of failing to return to work.” Id. at ¶ 380.

In light of the foregoing allegations, the Court finds that Plaintiff’s Complaint avers

enough to state a claim for First Amendment Retaliation, as Plaintiff has satisfied his burden to

“only produce some evidence, direct or circumstantial” of a causal link between the protected

activity and alleged retaliation, “that is ‘enough to raise the right to relief above the speculative

level.’” Nusser v. Twp. of Hanover, No. 20-1587, 2022 U.S. Dist. LEXIS 38036 at *12 (W.D. Pa.

Mar. 3, 2022) (quoting Bell Atl. Corp. v. Twombley, 550 U.S. 544, 555 (2007)).

f. Count II: 42 U.S.C.S. § 1983: Plaintiff States a Claim for First Amendment

Retaliation Based on Political Affiliation

Count II of the Complaint brings another First Amendment Retaliation claim, this time

based on Plaintiff’s political affiliation. “Under the Supreme Court’s political patronage trilogy,

the First Amendment’s freedom of association guarantee bars basing employment decisions, such

as discharge, hiring and promotions, on an employee’s political affiliation, so long as such

affiliation is not an appropriate requirement for the position at issue.” Ferraioli v. City of

Hackensack, No. 09-2663, 2010 U.S. Dist. LEXIS 8527 at *22 (D. N.J. Feb. 2, 2010). To state a

First Amendment political affiliation retaliation claim, a Plaintiff must (1) “establish that ‘she was

employed at a public agency that does not require political affiliation”; (2) “show that she engaged

in conduct protected by the First Amendment”; and (3) “prove that the constitutionality-protected

conduct was a substantial or motivating factor for the adverse employment action.” Montone v.

City of Jersey City, 709 F.3d 181, 189 (3d Cir. 2013). “The Third Circuit has elaborated that there

is an implicit requirement in the third prong that the plaintiff ‘produce sufficient evidence to show

the defendant knew of plaintiff’s political persuasion.’” Gayles v. Hillside Bd. of Educ., 2022 U.S.

Dist. LEXIS 67293 at *12 (D. N.J. Apr. 11, 2022) (quoting Goodman v. Pa. Turnpike Comm’n,

293 F.3d 655, 664 (3d Cir. 2002)).

Defendants contend there are no facts plead in the Complaint “that would prove”

Defendants knew of Plaintiff’s political affiliation. See Defendants’ MTD at pg. 20 [ECF No. 10-

1]. Defendants argue “[t]here was no pleading that Plaintiff was politically active or made his

political inclinations known to [the] Administration publicly or privately, before they suspended

him or to the Board before they terminated him.” Id. Indeed, Plaintiff’s Complaint avers Plaintiff

did not advertise that he was “a conservative republican and supported Donald Trump” because

ASD “is overwhelmingly comprised of liberal Democrats who have demonstrated hostility for

Republicans, conservatives, and supporters of Donald Trump.” Compl. at ¶ 26 [ECF No. 1-1].

However, Plaintiff’s Complaint alleges Defendants learned of his political affiliation

through “Plaintiff’s private social media” which “contained and expressed statements of political

affiliation and support for Republicans, conservatives, and President Donald J. Trump.” Id. at ¶

408. Plaintiff alleges Defendants “took adverse action against Plaintiff both because he affiliated

with President Trump, and also because of the perceived political affiliations his social media posts

conveyed.” Id. at ¶ 409. Plaintiff avers that Defendants’ refusal to reinstate Plaintiff or “retract”

public statements made about Plaintiff was based on Defendants’ “left-wing politics and

ideological hatred for Republicans and conservatives.” Id. at ¶ 76. Even if, as Defendants allege,

Defendants were unaware of Plaintiff’s political affiliation when Plaintiff was initially suspended

on January 7, 2021, Plaintiff’s Complaint alleges enough facts from which a reasonable inference

may be drawn that Defendants became aware, if they were not already, of Plaintiff’s political

affiliation shortly thereafter. Indeed, the Complaint alleges that Defendants learned Plaintiff

attended a political rally in support of then-President Donald Trump shortly after January 6, 2021

as ASD issued a press release regarding Plaintiff the next day, and the topic was discussed at length

in a February 11, 2021 Board Meeting. See generally id. Plaintiff plausibly alleges that

Defendants’ allegedly retaliatory conduct in the months – and years – following the initial January

7, 2021 suspension of Plaintiff was motivated by “Plaintiff’s political affiliations.” Id. at ¶ 414.

Accordingly, the Court allows Plaintiff’s First Amendment retaliation claims based on

Plaintiff’s speech (Count I) and association (Count II) to proceed past the Motion to Dismiss stage

of litigation. See Ferraioli v. City of Hackensack, No. 09-2663, 2010 U.S. Dist. LEXIS 8527 at

*16-17 (D. N.J. Feb. 2, 2010) (permitting Plaintiff’s “First Amendment claims based on retaliation

for exercising both free speech and free association rights” to proceed past “Defendants’ Rule

12(b)(6) challenge.”).

g. Count III, Seeking Determination that Pennsylvania School Code Section

1122 Violates the US and Pennsylvania Constitutions is Denied as Moot

Count III of Plaintiff’s Complaint asks this Court to declare section 1122 of the

Pennsylvania School Code unconstitutional insofar as it permits termination of teachers for

“advocation of or participating in un-American or subversive doctrines” and enjoin enforcement

of this provision of section 1122 against Plaintiff. Compl. at ¶¶ 435-36 [ECF No. 1-1]. However,

on February 28, 2023, Plaintiff filed a Supplemental Response in Opposition to Defendants’

Motion to Dismiss Based Upon Repeal of Section 1122. [ECF No. 24]. Plaintiff’s Supplemental

Response advises that “[a]dditional research shows that section 16 of the Pennsylvania Loyalty

Act, Act of Dec. 22, 1951, No. 463 includes a section repealing the pertinent portion of section

1122.” Id. at pg. 1. This Court agrees with Plaintiff that Section 1122’s grounds for termination

based on “advocation of or participating in un-American or subversive doctrines” was “expressly

repealed [] by section 16 of the Pennsylvania Loyalty Act of December 22, 1951.” Bd. of Pub.

Educ. v. Intille, 401 Pa. 1, 4 n.3 (Pa. 1960).

Notwithstanding this, Plaintiff “continues to ask that section 1122 itself be declared

unconstitutional as overbroad and vague to the extent if the Court determines for any reason the

language at issue has not been repealed.” Plaintiff’s Supplemental Response at pg. 2 [ECF No.

24]. Because the Court finds the language at issue has been expressly repealed, the Court declines

to rule on the constitutionality of the now-repealed statutory language and dismisses Count III of

Plaintiff’s Complaint as moot. See Common Cause v. Pennsylvania, 447 F. Supp. 2d 415, 423

(M.D. Pa. 2006) (“Courts have held that repeal of a challenged statute renders the challenge

moot.”); Khodara Envtl., Inc. ex rel Eagle Envtl., L.P., 237 F.3d 186, 192-94 (3d Cir. 2001)

(holding constitutional challenge to statute seeking injunctive relief enjoining statute’s

enforcement mooted by statute’s subsequent amendment); Coral Springs St. Sys., Inc. v. City of

Sunrise, 371 F.3d 1320, 1329 (11th Cir. 2004) (“Generally, a challenge to the constitutionality of

a statute is mooted by repeal of the statute.”); Spencer v. Riley, No. 2:09-cv-1089, 2012 U.S. Dist.

LEXIS 99217 at *23 (M.D. Ala. June 4, 2012) (plaintiff’s requests for injunctive and declaratory

relief as to allegedly unconstitutional statute rendered moot by statute’s repeal).

h. Count IV: Procedural Due Process

i. Property Interest in Continued Employment: Plaintiff Fails to State a

Pre-Deprivation Due Process Claim Based on His Paid Suspension; But

Plaintiff Successfully States a Pre-Deprivation Due Process Claim

Based on His Unpaid Suspension, and a Post-Deprivation Due Process

Claim Based on Defendants’ Alleged Bias.

“In considering a procedural due process claim, courts look to (1) whether the interest

deprived falls within the scope of the Fourteenth Amendment’s protection of life, liberty, or

property and (2) whether the procedures available provided the plaintiff with due process of law.’”

Kairo-Scibek v. Wyo. Valley West Sch. Dist., 880 F. Supp. 2d 549, 556 (M.D. Pa. 2012) (internal

quotations omitted). Here, Plaintiff alleges (1) he has a property interest in his continued

employment as a teacher with ASD and (2) Defendants’ deprivation of this property interest

violated Plaintiff’s right to due process. See Compl. at ¶¶ 439; 443. Courts applying Pennsylvania

law have found, and Defendants do not contest, that Plaintiff, as a public school teacher, was

entitled to “procedural due process prior to removal.” Wagner v. Tuscarora Sch. Dist., No. 1:04-

cv-1133, 2005 U.S. Dist. LEXIS 45663 at *10 (M.D. Pa. Sept. 21, 2005); see also Defendants’

MTD at pg. 27 [ECF No. 10-1] (“Defendants do not deny that as a teacher Plaintiff had a property

interest in his job.”). Pursuant to the Supreme Court’s decision in Loudermill, public employees

with a constitutionally protected property interest in continued employment are entitled to “an

informal, pre-termination hearing, to be followed by a more comprehensive post-termination

hearing.” Cormier v. Crestwood Sch. Dist., No. 3:19-cv-1671, 2020 U.S. Dist. LEXIS 197283 at

*14 (M.D. Pa. Oct. 23, 2020).

1. Pre-deprivation Claims

Plaintiff argues he states two pre-deprivation claims (1) “for the pre-deprivation

violations that occurred from January 2021 to July 2021” relating to his suspension, and (2) “the

pretextual and deficient pre-deprivation process that occurred in September and October 2021”

relating to Plaintiff’s termination. See Plaintiff’s Response in Opposition to MTD at pg. 17 [ECF

No. 15].

a. Plaintiff Does Not State a Claim for Pre-Deprivation

Due Process Violation Arising Out of His Suspension

With Pay

Plaintiff’s conclusory allegations that his initial suspension was with intent to terminate are

not supported with well-pleaded facts. Plaintiff does not aver any District Officer Defendants or

other Individual Defendants stated Plaintiff’s suspension was with intent to dismiss or

recommended termination at the time the suspension was made. See Moffitt v. Tunkhannock Area

Sch. Dist., No. 3:13-1519, 2013 U.S. Dist. LEXIS 181603 at *13 (M.D. Pa. Dec. 31, 2013) (finding

suspension is made with “intent to terminate” where suspension includes an “intent to dismiss” or

when letter notifying plaintiff of allegations supporting suspension includes notification that

school administration recommended termination.).

Plaintiff also alleges his suspension was with pay and without notice. See Compl. at ¶ 17.

In evaluating whether this conduct violates Plaintiff’s procedural due process rights, the court

considers the following three factors: (1) Plaintiff’s private interest in not being suspended with

pay; (2) ASD’s “interest in the expeditious removal of unsatisfactory employees and the avoidance

of administrative burdens” and (3) “the risk of erroneous termination.” Biliski v. Red Clay Consol.

Sch. Dist. Bd. of Educ., 574 F.3d 214, 221 (3d Cir. 2009). “[A]” public employee is not absolutely

entitled to a pre-suspension hearing.” Yelland v. Abington Heights Sch. Dist., 2017 U.S. Dist.

LEXIS 18441 at *16 (M.D. Pa. Feb. 9, 2017). Indeed, “[w]here it would be impractical to provide

pre-deprivation process, post-deprivation process satisfies the requirements of the Due Process

clause.” Kairo-Scibek, 880 F. Supp. 2d at 558 (quoting Gilbert v. Homar, 520 U.S. 924, 930

(1997)).

Here, Plaintiff was suspended with pay on January 7, 2021. Compl. at ¶ 17. That same day,

Plaintiff was informed by Defendant Pidgeon that he was being suspended “based upon serious

concerns about your involvement in the civil unrest that occurred at the United States Capitol

Building” and that ASD was investigating Plaintiff’s involvement in the unrest. Id. ¶ 32. The very

next day, On January 8, 2021, Plaintiff was issued a Garrity notice and appeared via Zoom for a

meeting with the District Solicitor and Defendant Pidgeon, where Plaintiff was questioned and

explained his conduct on January 6, 2021. Id. ¶ 51-53.

Considering the Complaint alleges Plaintiff’s suspension was with pay, that Plaintiff was

given notice of the grounds for his suspension that same day, and afforded the opportunity to

respond in a meeting with the District Solicitor the very next day, and that Plaintiff was given a

Loudermill Notice and Hearing – all while still being paid – the Court finds the Complaint fails to

state a pre-deprivation Procedural Due Process claim based on Plaintiff’s suspension. See Deltondo

v. Sch. Dist. of Pittsburgh, No. 2:22-350, 2023 U.S. Dist. LEXIS 15133 at *22 (W.D. Pa. Jan. 30,

2023) (“Numerous courts have held” suspension with pay does “not require prior notice and a

Loudermill hearing” and “the property interest in not being suspended with pay” is “minimal”);

Cormier, 2020 U.S. Dist. LEXIS 197283 at *15 (“a governmental employee who is suspended

with pay is not entitled to a pre-suspension hearing providing the employee with notice and an

opportunity to be heard.”); Smith v. Borough of Dunmore, No. 3:05-cv-1343, 2011 U.S. Dist.

LEXIS 43766 at *9 (M.D. Pa. Apr. 22, 2011) (holding plaintiff’s interest in being suspended with

pay “a comparatively minor deprivation” to that of being “suspended without pay”) (emphasis in

original). Moreover, in addition to the foregoing considerations, allegations of pre-deprivation

proceeding bias, by themselves, are insufficient to establish a procedural due process violation

claim. Greene v. Sch. Dist. of Phila., No. 2:08-cv-4163, 2009 U.S. Dist. LEXIS 149743 at *17

(E.D. Pa. May 28, 2009) (“biased pre-deprivation proceedings are not violations of due process so

long as there is an opportunity for a post-deprivation hearing.”)

b. Plaintiff States a Claim for Pre-Deprivation Due

Process Violation Arising Out of His Suspension

Without Pay

Plaintiff also contends he states a separate pre-depravation claim for “violations” occurring

“in September 2021 when Defendants pretextually and in a predetermined manner (including

stopping his pay) claimed that he had “failed to appear for work, even though it was obvious in

early 2021 that Plaintiff could never return to the district because of the hostile work environment

and complete collapse of the employment relationship – not to mention the uncorrected horrific

defamation which still remains uncorrected.” Plaintiff’s Response to MTD at pg. 19 [ECF No. 15].

Plaintiff alleges his pay was stopped on September 1, 2021. Compl. at ¶ 179. However, prior to

this pay stoppage, Plaintiff alleges he was served with a Reinstatement Letter on July 16, 2021 and

that he rejected the conditions of the Reinstatement Letter and refused to return to work. Id. at ¶¶

144, 153. Thereafter, Plaintiff alleges he received a letter from Defendant Pidgeon on August 9,

2021, demanding he return to work and advising that if he does not respond by August 13, 2021

or does not intend to return to work, his salary and benefits will be dismissed. Id. at ¶ 155-56; Ex.

24. Plaintiff alleges he responded to this letter on August 16, 2021 and reaffirmed his rejection of

the Reinstatement Letter’s terms and refused to return to work. Id. at ¶ 155-56; Ex. 24. Moreover,

Plaintiff alleges he was served with a Loudermill notice for his termination due to failure to show

up for work on September 14, 2021, two weeks after his pay was stopped. Id. at ¶ 172.

Nevertheless, because Plaintiff alleges he was suspended without pay for his failure to

report to work two weeks prior to receiving his termination notice and prior to a termination

hearing, the Court finds at this early stage of litigation that Plaintiff states a plausible pre-

deprivation Procedural Due process claim arising out of his unpaid suspension. Courts in this

circuit consistently find that “absent extraordinary circumstances,” a public employee with a

property interest in their job is entitled to a hearing prior to an unpaid suspension or termination.

Schmidt v. Creedon, 639 F.3d 587, 596 (3d Cir. 2011); Vatner v. Bd. of Trs. of the Univ. of Med.

& Dentistry of N.J., No. 12-3339, 2015 U.S. Dist. LEXIS 13135 at *34 (D. N.J. Feb. 3, 2015).

2. Plaintiff States a Post-Deprivation Due Process Claim

Plaintiff also argues he pleads a post-deprivation claim, contending “the Board Hearing

process was a biased sham which violated due process.” See Plaintiff’s Response in Opposition to

MTD at pg. 17 [ECF No. 19]. Plaintiff alleges the Board Hearing process was biased because the

School Board participated in and ratified the retaliation against Plaintiff, Plaintiff had already sued

Defendants, and the School Board harbored “political animus” towards Plaintiff. Id. at ¶ 450.

Plaintiff avers that Defendant Board Members Harris and Conover colluded “to attack and retaliate

against” Plaintiff by starting and sharing a Change.Org petition, allegedly about Plaintiff, which

“oppose[d] anyone that attended the storming of the capital in Washington” and suggested Plaintiff

supported “white supremacy.” Id. at ¶¶ 77-87. Plaintiff alleges all Board Members were aware of

this petition prior to a February 11, 2021 Board Meeting. Id. Plaintiff further avers the Board

Hearing process was biased because the hearing officer was also the District Solicitor, Mr.

Sultanik, and also because the hearing officer did not compel the board members to testify despite

Plaintiff’s request, the Individual Board members did not attend the hearing process, the hearing

officer did not consider evidence regarding Plaintiff’s allegations that he had been constructively

discharged “due to a hostile and unsafe environment,” the hearing officer did not read Plaintiff’s

briefing, and the hearing officer told Plaintiff he was not entitled to an impartial and unbiased

board hearing. Id. at ¶¶ 191-218. Plaintiff alleges the hearing officer, Mr. Sultanik, both presided

over the board hearing, ruling on evidentiary objections, and issued a report and recommendation

to the Board, which recommended Plaintiff be terminated. Id. at ¶ 243, 246; Ex. 54.

“The Third Circuit recognizes ‘two kinds of procedural due process violations: those that

arise from insufficient procedural safeguards and those that arise from decisionmaker bias.”

Paparo v. Borough of Yeadon, No. 22-841, 2022 U.S. Dist. LEXIS 183850 at *16 (E.D. Pa. Oct.

7, 2022). “An unconstitutional potential for bias exists when the same person serves as both

accuser and adjudicator in a case.” Id. (quoting Williams v. Pennsylvania, 579 U.S. 1, 8 (2016)).

Belasco v. Bd. of Public Educ., 510 Pa. 504, 510 (Pa. 1986) (“In the hearing before the School

Board, the Board acts in a dual capacity, both as a prosecutor and judge. The circumstances of the

Board serving in this twin function creates a potential for prejudice.”). “To show insufficient

procedural safeguards, a plaintiff ‘does not need to prove a stacked deck to prevail; rather, all [he

needs to establish is that the adjudicatory panel was infected with the appearance of non-

objectivity.’” Id. (quoting Purcell v. Reading School District, 167 A.3d 216, 226 (Pa. Commw. Ct.

2017)). To adequately allege decisionmaker bias, a plaintiff must make a sufficient showing of

decisionmaker bias and allege that the bias was not eliminated due to limitations placed on the

decisionmaker's discretion or availability of review. Decisionmaker bias may be alleged by

showing that the adjudicator demonstrated a predisposition on the issue. Id. (internal citation

omitted).

At this early stage, Plaintiff’s allegations sufficiently plead decisionmaker bias.

Defendants’ reliance on Behm v. Wilmington Area School District, 996 A.2d 60 (Pa. Commw. Ct.

2010) is misplaced. In Behm, the district solicitor gathered evidence used by the district in the

hearing and then “acted as the School Board’s legal advisor at the hearing and ruled on the

admissibility of this same evidence for consideration by the School Board.” Id. at 63-64. The Court

held the plaintiffs’ due process rights were not violated because there was no allegation the

solicitor “was otherwise involved in the School Board’s actual decision making” and on the

grounds that the solicitor could not have acted as both a prosecutor and adjudicator because, in

that case, the hearing was “non-disciplinary” and therefore “no one is acting in a prosecutorial

capacity.” Id. at 65-66. Here, Plaintiff alleges the Solicitor, Mr. Sultanik, was involved in the

Board’s actual decision making because he issued a report to the Board recommending Plaintiff

be terminated, and this hearing was disciplinary in nature. At this stage, Plaintiff pleads enough

allegations of bias to survive a motion to dismiss. Kaidanov v. Pa. State Univ., No. 14-3191, 2014

U.S. Dist. LEXIS 176556 at *19-20 (E.D. Pa. Dec. 23, 2014) (holding complaint’s allegations that

university employer’s Employee Relations manager “was biased, and therefore not an impartial

decision-maker” in support of “claim for violation of post-termination due process…may not

survive a summary judgment motion” but “alleged just enough to get beyond a motion to

dismiss.”).

In any event, Plaintiff’s numerous allegations of bias, considered together, state a claim for

violation of Plaintiff’s procedural due process rights.

ii. Plaintiff’s “Plus” Due Process Claims: Plaintiff States a Claim for

“Reputation-Plus” Due Process Violation; but not “Stigma-Plus” Due

Process Violation.

In addition to the foregoing, a plaintiff may also bring a due process claim when the

employee’s “firing or demotion is coupled with a defamatory official statement” or “when an

adverse employment action…is combined with ‘a stigma or other disability that forecloses the

plaintiff’s freedom to take advantage of other employment opportunities.’” Evangelou v. D.C., 901

F. Supp. 2d 159, 171 (D. D.C. 2012) (quoting O'Donnell v. Barry, 148 F.3d 1126, 1140, (D.C. Cir.

1998)). Here, Plaintiff pursues a due process claim under both theories. Compl. at pgs. 97-111.

Plaintiff pleads these theories as two separate “Stigma-Plus” and “Reputation-Plus” due process

claims. Id. However, courts in this circuit appear to refer to both theories jointly as a “stigma-plus”

claim. Kern v. Schuykill Intermediate Unit 29, No. 3:CV-08-1601, No. 18-1236, 2010 U.S. Dist.

LEXIS 3216 at *17-18 (M.D. Pa. Jan. 15, 2010); Thompson v. Del. Dep’t of Servs. for Children,

2019 U.S. Dist. LEXIS 151170 at *12 (D. Del. Sept. 5, 2019); Otto v. Williams, 704 Fed. Appx.

50, 53 (3d Cir. 2017). See also Ersek v. Township of Springfield, 102 F.3d 79, 83 n.5 (3d Cir. 1996)

(referring to “reputation-plus” and “stigma-plus” claims interchangeably); McGinnis v. District of

Columbia, 65 F. Supp. 3d 203, 220 (D. C.C. 2014) (“The stigma and reputation-plus theories

appear to be two sides of the same coin.”). For ease of reference, the Court refers to Plaintiff’s

“Plus” claims as plead: a “Reputation-Plus” claim, and a “Stigma-Plus” claim.

Plaintiff’s Complaint sufficiently pleads a Reputation-Plus claim pursuant to the theory

that Defendants defamed Plaintiff in connection with or accompanied by a deprivation of some

additional right or interest. Plaintiff alleges Defendants made defamatory statements about him on

January 7, 2021 via the press release, on January 8, 2021 to the Morning Call, and on February 11,

2021. Compl. at ¶ 473. Defendants contend Plaintiff does not adequately plead that Defendants

created a defamatory impression regarding him. As is especially the case in this action, Plaintiff’s

allegations give rise to numerous factual issues not appropriate for resolution at this early stage in

litigation. See Ciemniecki v. Parker McCay P.A., No. 09-6450, 2012 U.S. Dist. LEXIS 552 at *15

(D. N.J. Jan. 4, 2012) (“In cases where the statement is capable of both defamatory and non-

defamatory meanings, the question of whether the content is defamatory properly rests with the

trier of fact.”). Although at least some of the allegedly defamatory statements made by Defendants

do not expressly identify Plaintiff by name, a statement need not identify a plaintiff by name to be

defamatory. See Johnston v. Borders, 36 F. 4th 1254, 1276 (11th Cir. 2022) (holding allegedly

defamatory statement forming basis of stigma/reputation plus claim need not necessarily designate

plaintiff by name if those who read or hear statement “reasonably understand the plaintiff to be the

person intended,” noting “[e]xtrinsic facts may make it clear that a statement refers to a particular

individual although the language used appears to defame nobody.”).

Plaintiff alleges these defamatory statements were accompanied by numerous deprivations,

including his suspension and termination, by Defendants. Compl. at ¶ 474. Because Plaintiff

alleges he was suspended and constructively terminated by Defendants for exercising his First

Amendment rights, and that in the process of his suspension, investigation, and constructive

termination Defendants issued defamatory statements falsely suggesting Plaintiff participated in

unrest at the Capitol, Plaintiff has done enough, at this early stage, to plead a Stigma-Plus Due

Process claim. See Hill v. Borough of Kutztown, 455 F.3d 225, 238 (3d Cir. 2006) (“A public

employee who is defamed in the course of being terminated or constructively discharged satisfies

the ‘stigma plus’ test.”).

Plaintiff, however, fails to state his “Stigma-Plus” claim for violation of due process under

the separate and additional theory that the adverse actions taken against Plaintiff were “combined

with a stigma or other disability that forecloses the plaintiff’s freedom to take advantage of other

employment opportunities.” Evangelou, 901 F. Supp. 2d at 171 (quoting O'Donnell, 148 F.3d at

1140). To state a claim pursuant to this theory of a stigma-plus due process violation, a plaintiff

must plead more than “stigma alone,” and rather must show “a right or status previously recognized

by state law has been distinctly altered or extinguished.” Id. (internal quotations and citation

omitted). Claims asserted under this theory “involve[] a situation, for example, when the state

‘invokes a regulation to bar the plaintiff from all other public employment in state universities.’”

Fox v. Cheltenham Twp. Auth., No. 12-716, 2012 U.S. Dist. LEXIS 83903 at *14 (E.D. Pa. June

18, 2012) (quoting Bd. of Regents v. Roth, 408 U.S. 564, 573 (1972)). Here, Plaintiff’s allegations

that Defendants’ conduct “destroyed” his “reputation and career” are conclusory and unsupported

by specific factual allegations. Compl. at ¶ 456. Plaintiff does not allege he has unsuccessfully

applied for other teaching jobs or plead any other specific facts indicating he has been effectively

barred from other employment opportunities. Accordingly, the Court grants Defendants’ Motion

to Dismiss as it pertains to this theory of a “stigma-plus” due process violation. See Lea v. District

of Columbia, No. 22-1396, 2022 U.S. Dist. LEXIS 140118 at *17 (D. D.C. Aug. 8, 2022) (“a

stigma-plus claim cannot survive a motion to dismiss on the theory that a government action led

to mere difficulty finding a job.”).

i. Count V: Plaintiff Fails to State a Claim for Coerced Statements and

Unreasonable Search and Seizure Under Fourth, Fifth, and Fourteenth

Amendments

Count V of the Complaint alleges Defendants violated Plaintiff’s Fourth, Fifth, and

Fourteenth Amendment Rights because when Defendants conducted the January 8, 2021 interview

of Plaintiff “they actually secretly acted on behalf of the FBI” and the Garrity notice given to

Plaintiff prior to the meeting was “misleading” because it “did not disclose he was actually already

under criminal investigation by the FBI, and that he was being interviewed by the FBI.” Compl.

at ¶¶ 482-491. Plaintiff’s Complaint attaches the Garrity Notice issued to Plaintiff in advance of

the January 8, 2021 interview, which states “Any statements made by you during these interviews

cannot be used against you in any subsequent criminal proceeding, nor can the fruits of any of your

statements be used against you in any subsequent criminal proceeding.” Id. at Ex. 3.

Plaintiff also alleges that Defendants conducted an “unreasonable search and seizure” of

Plaintiff’s property by seizing Plaintiff’s work devices “while secretly acting as an arm of the FBI,

without disclosing [the devices] were being searched by law enforcement for incriminating

reasons.” Id. at ¶¶ 492-505.

Plaintiff alleges he “was never informed by his employer or the FBI of his constitutional

right against self-incrimination, an egregious violation of the Fifth Amendment, nor that he should

have criminal defense counsel present even though he was effectively being interviewed as a

suspect by the FBI.” Id. at ¶ 484. Plaintiff alleges “Garrity protects Plaintiff, a public employee,

under the Fifth and Fourteenth Amendment against coerced statements.” Id. at ¶ 486.

The Garrity rule protects public employees “from having to choose between cooperating

with an internal investigation and making potentially incriminating statements. Immunity under

Garrity prevents any statements made in the course of the internal investigation from being used

against the [employee] in subsequent criminal proceedings.” United States v. Callahan, No. 1:10-

cr-353, 2011 U.S. Dist. LEXIS 109580 (N.D. Ga. Sept. 26, 2011). “Speculation is insufficient to

invoke the protections of the Fifth Amendment: ‘It is well established that the privilege protects

against real dangers, not remote or speculative possibilities.’” Frierson v. City of Terrell, No. 3:02-

cv-2340-H, 2003 U.S. Dist. LEXIS 15132 at *6-7 (N.D. Tex. Aug. 15, 2003) (quoting Zicarelli v.

New Jersey State Commission of Investigation, 406 U.S. 472, 478 (1972)).

Plaintiff’s Complaint is devoid of any non-conclusory allegations that Defendants

conducted the January 8, 2021 interview of Plaintiff or searched Plaintiff’s work devices while

acting on behalf of the FBI. Although Plaintiff’s Complaint at one point alleges that “testimony at

the Board Hearing established that high-level” ASD officials “kept a special, secret 299-page

binder relating to an FBI inquiry to Mr. Moorehead,” it is unclear how ASD possessing a binder

“relating to an FBI inquiry” constitutes a factual allegation that Defendants interviewed Plaintiff

or searched his work devices “as an arm of the FBI.” Id. at ¶¶ 166, then 499. At no point does

Plaintiff even allege what the contents of this testimony “establish[ing]” the existence of a binder

is. Id. at ¶ 166. Rather, Plaintiff cites vaguely to the Board Hearing Transcript that, if anything,

contains explicit testimony averring that the FBI was not involved in the January 8, 2021

questioning of Plaintiff. Id. at ¶ 166; Ex. 43 (180:7-181-3). Plaintiff’s Complaint similarly avers

the conclusory allegation that Defendants “started working with the FBI to criminally investigate

Plaintiff the morning of January 7, 2021” and cites vaguely to the Board Hearing Transcript

without indicating what testimony established that Defendants “started working with the FBI to

criminally investigate Plaintiff the morning of January 7, 2021” is. Id. at ¶ 169; Ex. 49. Moreover,

Plaintiff does not allege he made any coerced statements during the January 8, 2021 interview that

were subsequently used in criminal proceedings.

Similar to Plaintiff’s allegations surrounding the January 8, 2021 interview, Plaintiff’s

Complaint alleges in conclusory fashion that “the FBI was behind this request and was the entity

searching his devices.” Id. at ¶ 124. Plaintiff avers no facts supporting this conclusion, and cites,

without specification, to Exhibits 17-18 of Plaintiff’s Complaint. Id. Exhibits 17 and 18 of

Plaintiff’s Complaint consist of e-mail correspondence between Plaintiff’s counsel and then-

District Solicitor John Freund, and a letter written by Plaintiff’s counsel to the School Board. Id.

at Ex. 17-18. Neither of these exhibits make any reference to the FBI. Id.

Accordingly, the Court finds Plaintiff fails to state a claim for violations of the Fourth,

Fifth, and Fourteenth Amendments for Coerced Statements and Unreasonable Search and Seizure

on Behalf of the FBI. Count V of Plaintiff’s Complaint is dismissed. Plaintiff’s conclusory

allegations that Defendants’ secretly asked Plaintiff questions on behalf of the FBI and collected

his work devices on behalf of the FBI are unsupported by well pleaded facts. Claims based on

“pure speculation” are not entitled to survive dismissal at this stage. Jankowski v. Lellock, 649 Fed.

Appx. 184, 188 (3d. Cir. 2016). Moreover, absent clear pleading in the Complaint of specific

testimony or facts that support Plaintiff’s allegations, the Court is not required to hunt through

hundreds of pages of exhibits and testimony to cobble together a plausible claim on behalf of

Plaintiff. See United States v. Dunkel, 927 F.2d 955, 956 (7th Cir. 1991) (“Judges are not like pigs,

hunting for truffles buried in briefs.”).

Because the Court dismisses Count V on the basis that Plaintiff fails to plead sufficient

facts to state a claim, dismissal is without prejudice.

j. The Court Construes Count VI of Plaintiff’s Complaint Seeking Name-

Clearing Hearing as a Prayer for Relief in Connection With Plaintiff’s

Stigma-Plus Claim

Defendants move for dismissal of Count VI, contending a “name-clearing hearing” is not

a standalone cause of action, but rather a claim for a specific form of relief. See Defendants’ MTD

at pg. 34 [10-1]. Defendants also contend Plaintiff should be barred from requesting a name-

clearing hearing because Plaintiff “has been provided multiple and sufficient opportunities to clear

his name.” Id. at pg. 35.

The court agrees that Count VI of Plaintiff’s Complaint, for declaratory and equitable relief

in the form of a name-clearing hearing does not state a standalone cause of action. However,

because Plaintiff validly states a “stigma-plus” due process claim, the Court will construe Count

VI of Plaintiff’s Complaint as a properly plead prayer for relief as it relates to Plaintiff’s “stigma-

plus” claim. Brown v. Montgomery County, No. 08-4259, 2011 U.S. Dist. LEXIS 35811 at *8

(E.D. Pa. Mar. 31, 2011) (“the principal remedy for a stigma-plus claim is a name-clearing

hearing.”).

Moreover, although Defendants contend Plaintiff had multiple opportunities to clear his

name during and before the Board Hearing Process, because Plaintiff successfully states a

procedural due process claim arising out of the alleged bias of the process and decisionmakers,

Plaintiff’s requested remedy of a name-clearing hearing is not forfeited. See Slazar v. City of

Albuquerque, No. 10-0645, 2014 U.S. Dist. LEXIS 160250 at *124 (D. N.M. Oct. 27, 2014) (“A

name-clearing hearing may be inadequate if the plaintiff is not given notice of the charges against

him and if the hearing is before a biased adjudicator.”); Paparo, 2022 U.S. Dist. LEXIS 183850

*15-18 (allowing plaintiff’s stigma-plus claim to proceed past motion to dismiss stage where

plaintiff alleged he was not afforded an adequate name-clearing hearing because his termination

hearing was “inherently biased”).

k. Plaintiff’s Complaint States Claims for Punitive Damages Only as to Claims

Brought Against Individual Defendants in their Individual Capacities

Defendants allege Plaintiff’s claims for punitive damages should be stricken as a matter of

law because punitive damages are not recoverable under section 1983 or against a municipality or

local officials in their official capacities. Defendants’ MTD at pg. 35 [ECF No. 10-1]. Plaintiff

does not contest that punitive damages are not recoverable against a municipality, but contends

punitive damages may be recovered against individual defendants in their individual capacities.

Plaintiff’s Response in Opposition to MTD at pg. 24 [ECF No. 15]. Plaintiff is correct that “[a]n

individual defendant may be held liable in his individual capacity for punitive damages if the

actions are motivated by ‘evil motive or intent, or where it involves reckless or callous indifference

to the federally protected rights of others.’” Mitros v. Borough of Glenolden, 170 F. Supp. 2d 504,

508 (E.D. Pa. 2001) (quoting Smith v. Wade, 461 U.S. 30, 56 (1983)).

Taking Plaintiff’s allegations as true, as the Court must at this stage, “they are sufficient to

infer recklessness or callous indifference to” Plaintiff’s rights, and “therefore the request for

punitive damages on § 1983 claims” against Individual Defendants in their “individual capacity

will not be stricken.” Turner v. Wester, No. 5:20-cv-199, 2021 U.S. Dist. LEXIS 76547 at *11-12

(N.D. Fla. Apr. 21, 2021).

l. Motion to Strike: Federal Rules of Civil Procedure 8(a)(2) and 8(d)(1) and

12(f)

Lastly, Defendants move this Court to strike numerous paragraphs of the Complaint

pursuant to Federal Rules of Civil Procedure 8(a)(2), 8(d)(1), and 12(f), arguing “[t]he paragraphs

themselves are not succinct statements containing alleged facts but contain speeches, page-long

quotations, legal citations and argument infused with impertinent references such as “Soviet-esque

star chambers” and scandalous inference such as “hidden orchestration” between the District and

law enforcement.” Defendants’ MTD at pg. 38 [ECF No. 10-1].

Pursuant to Federal Rule of Civil Procedure 12(f), "[t]he court may strike from a pleading

an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter."

Moreover, Federal Rule of Civil Procedure 8 requires a complaint must contain “a short and plain

statement of the claim showing the pleader is entitled to relief” and “each allegation must be

simple, concise, and direct.” Fed. R. Civ. P 8(a);(d)(1). Plaintiff’s Complaint is anything but

concise, direct, or short. Plaintiff’s Complaint consists of 514 paragraphs and 123 pages of

allegations, and attaches another 483 pages of exhibits.

“The standard for striking under Rule 12(f) is strict and…only allegations that are so

unrelated to plaintiffs' claims as to be unworthy of any consideration should be stricken.” Johnson

v. Anhorn, 334 F. Supp. 2d 802, 809 (E.D. Pa. 2004) (quoting Becker v. Chi. Title Ins. Co., No.

Civ. A. 03-2292, 2004 U.S. Dist. LEXIS 1988, at *18 (E.D.Pa. Feb. 4, 2004)). Indeed, as case law

cited by Defendants themselves notes, “[s]triking a pleading or a portion of a pleading ‘is a drastic

remedy to be resorted to only when required for the purposes of justice.” LiCausi, 2020 U.S. Dist.

LEXIS 17479 at *6 (quoting Lee v. Dubose Nat’l Energy Servs., Inc., No. 18-cv-2504, 2019 U.S.

Dist. LEXIS 71309 at *4 (E.D. pa. Apr. 29, 2019)). However, courts have “considerable

discretion” in ruling on a Rule 12(f) motion to strike. Deltondo, 2023 U.S. Dist. LEXIS 14781 at

*4.

Though the Court agrees with Defendants that Plaintiff’s Complaint need not be nearly as

long as it is, and is replete with minimally relevant accusations and legal conclusions, out of an

abundance of caution, to avoid striking allegations arguably relevant4 to Plaintiff’s claims, and

4 Much of the paragraphs Defendants seek to strike are arguably relevant to Plaintiff’s

claims of procedural bias, First Amendment retaliation based on his political beliefs, and

contention that all Defendants had knowledge of these alleged constitutional violations when

Plaintiff was suspended and terminated. The Court finds the concern of striking potentially

relevant allegations, at this early stage, outweighs any concerns of prejudice. See Levy v. Jaguar

Land Rover North Am., LLC, No. 19-13497, 2020 U.S. Dist. LEXIS 18711 at *5 (D. N.J. Feb. 4,

2020) (“To succeed on a motion to strike, the moving party must show that the allegations in the

complaint ‘have no possible relation to the controversy and may cause prejudice to one of the

parties, or that the allegations confuse the issues.’”) (quoting Garlanger v. Verbeke, 223 F. Supp.

596, 609 (D. N.J. 2009)) (emphasis added); Ratvasky v. Citizens Nat’l Bank, No. 05-cv-1056, 2005

U.S. Dist. LEXIS 40474 at *5 (W.D. Pa. Dec. 5, 2005) (denying Rule 12(f) motion to strike for

“immaterial, impertinent, or scandalous” paragraphs of complaint because “the pleadings are [not]

read to the jury…[t]herefore, there is no real concern for prejudice here.”); Lifetouch Nat’l Sch.

Studios Inc. v. Roles, No. 3:15-cv-234, 2016 U.S. Dist. LEXIS 79771 at *8 (W.D. Pa. June 20,

considering the “highly disfavored” nature of a motion to strike, the Court will strike only the

following paragraphs from Plaintiff’s Complaint that consist purely of legal conclusions and plead

no relevant facts: ¶¶ 63; 132; 136; 265; 266; 280; 281; 282; 283; 327; 337; 338; 353; 354; 364;

365; 367; 368; 372; 373; 382; 385; 386; 389; 394; 396; 399; 400; 406; 429; 438; 440; 444; 447;

448; 452; 454; 470. See Eisai Co. v. Teva Pharms. USA, Inc., 629 F. Supp. 2d 416, 424 (D. N.J.

2009) (“Motions to strike are highly disfavored.”); See also Nance v. Emages, Inc., No. 20-C-

6316, 2022 U.S. Dist. LEXIS 104927 at *5-6 (N.D. Ill. June 13, 2022) (striking legal argument

from complaint, holding “[t]he occasional legal conclusion among a numbered statement of

alleged facts is often not worth the trouble of striking, but here, plaintiff has essentially included a

legal brief in his complaint.”).

V. CONCLUSION

For the foregoing reasons, Defendant’s Motion to Dismiss/Strike Plaintiff’s Complaint is

GRANTED IN PART and DENIED IN PART. An appropriate order follows.

BY THE COURT:

/s/ John M. Gallagher

JOHN M. GALLAGHER

United States District Court Judge

2016) (declining to strike potentially relevant allegations in complaint finding “answering these

paragraphs will not cause prejudice to Defendant.”).