RUSFELDT v. CITY OF READING

_______________F_O__R_ _T_H__E_ _E_A_S_T__E_R__N_ _D_I_S_T_R__IC_ T OF PENNSYLVANIA

ADEN RUSFELDT, :

Plaintiff, :

:

v. : Civil No. 5:23-cv-01523-JMG

:

CITY OF READING, et al., :

Defendants. :

__________________________________________

MEMORANDUM OPINION

GALLAGHER, J. October 25, 2023

I. INTRODUCTION

Before the Court are two motions to dismiss for failure to state a claim presented by

Reading School District, City of Reading, and Officer Cristian Morar. ECF Nos. 9, 15. For the

reasons stated herein, the Court finds Plaintiff’s Complaint fails to state a claim upon which

relief can be granted for Counts II and III. Additionally, the Complaint fails to state a claim in

Count I against the Reading School District. Accordingly, the Complaint is dismissed in part

without prejudice.

II. BACKGROUND1

Plaintiff, Mr. Rusfeldt, initiated the instant action by filing his complaint with the Court

on April 20, 2023 (“the Complaint”). The Complaint contains four counts and names four

defendants. The counts include Violations of Constitutional Rights, in violation of 42 U.S.C. §

1983 (“Count I”), Civil Conspiracy, in violation of 42 U.S.C. § 1983 (“Count II”), Failure to

Train, in violation of 42 U.S.C. § 1983 (“Count III”), and False Imprisonment (“Count IV”).

1 For purposes of the Motion to Dismiss, the Court accepts as true the allegations set forth in

against Reading School District (“the District”) and the City of Reading (“the City”). Count IV

contains allegations against the City, Officer Morar, and Police Officer Badge No. 160. See

generally, Pl. Complaint, ECF No. 1.

The Complaint alleges that on Tuesday, January 10, 2023, Plaintiff, along with his wife

and other persons, assembled for a demonstration on a public sidewalk in the City and across

from Reading Senior High School. Id. ¶ 11. The demonstrators spoke about their religious

viewpoints via written signs and verbal dissemination. Id. ¶ 13. During the demonstration,

“excitement grew among the students” and one student threw water at Plaintiff. Id. ¶ 14. Security

guards, employed by the Reading School District, ordered Plaintiff and those among him to

“leave or else they would be arrested.” Id. ¶ 15. After Plaintiff refused, the security guards

contacted the Police Department of the City and “requested a pretextual basis for the arrest of

[Plaintiff].” Id. ¶ 16. The security guards conversed with the students, but “did nothing to protect

[Plaintiff].” Id. ¶ 17.

Defendants, Officer Morar and Police Officer Badge No. 160, arrived at the scene. Id. ¶

17. Plaintiff informed Defendants that he was exercising his First Amendment rights of speech

and religious practice and requested a supervisor be contacted. Id. ¶ 19. A supervisor was not

contacted, and Officer Morar asked Plaintiff to relocate the demonstration to “three, four, five

blocks away from the Reading Senior High School.” Id. ¶ 20. Plaintiff said that he would do so

in “20, 30 minutes” and Officer Morar stated that “he needed to do it now or else [Plaintiff]

would be arrested for causing a disturbance, disorderly conduct.” Id. When Plaintiff refused,

Officer Morar placed him in handcuffs. Id. Plaintiff was taken to the police barracks but was

released without any criminal charges. Id. ¶ 23.

belief, it is the policy of the City, the Reading School District, or either of them, to use disorderly

conduct as a pretextual arrest for retaliating against protected speech under the First Amendment

of the U.S. Constitution,” “on information and belief, [it] is the policy of the City, the Reading

School District, or either of them, to instigate, request, or engage in pretextual, warrantless

arrests as a means of discriminating or retaliating against the viewpoints of… adherents of

evangelical, Protestant Christianity and the Fourth Amendment rights of such adherents,”

“Morar, Police Officer Badge No. 160, or …the City of Reading reached an understanding with

the Reading School District, or its security guards, or both, to deprive Plaintiff of his

constitutional rights,” Plaintiff states that Defendants acted with a “conspiratorial objective,” and

“the City of Reading and the Reading School District failed to train their respective police

officers, security guards, or employees, under circumstances evidencing a reckless indifference

to the rights of others [including the right to demonstrate and speak on public property.]” Id. ¶

24, 25, 34, 35, 38, 39.

III. LEGAL STANDARD

Defendants move for dismissal pursuant to Fed. R. Civ. P. 12(b)(6). “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.

(3d Cir. 2013)).

IV. ANALYSIS

A. Violation of Constitutional Rights (Count I)

1. Allegations Against the School District and the City

Defendants, Reading School District and the City of Reading, contend that Count I of the

Complaint should be dismissed, because it falls short of the necessary pleading requirements to

state a claim upon which relief may be granted. We agree.

Under 42 U.S.C. §1983, “every person who, under color of any statute, ordinance,

regulation, custom, or usage, of any State… subjects or causes to be subject, any citizen of the

United States or other person within the jurisdiction thereof to the deprivation of any rights,

privileges, or immunities secured by the Constitution and laws, shall be liable to the party

injured…” The doctrine of respondeat superior is not a basis for rendering municipalities liable

under 42 U.S.C. § 1983, instead Plaintiff must show a policy, custom, statement, ordinance,

regulation, or the like to support liability under the statute. Monell v. Dep’t of Soc. Servs., 436

U.S. 653, 690-91 (1978).

The alleged custom or policy must go beyond mere conclusory statements. McTernan v.

City of New York, 564 F.3d 636, 658-59 (3d Cir. 2009). Policy is made when “a decisionmaker

possessing final authority to establish a municipal policy with respect to the action issues an

official proclamation, policy, or edict.” Id. A custom is established when “though not authorized

by law, ‘such practices of state officials [are] so permanently and well-settled’ as to virtually

constitute law.” Id. In addition, custom “requires proof of knowledge and acquiescence by the

decisionmaker.” Id.

that there was a policy or custom to violate First or Fourth Amendment rights.2 While Plaintiff

asserts that his rights were violated and makes conclusory statements about it being the policy of

the City or the District to make pretextual, warrantless arrests, he does not point to any evidence

of such a policy or custom. Plaintiff does not point to any proclamation, policy, or edict. Nor

does Plaintiff establish any well settled practices. Plaintiff alleges “naked allegations” are all the

law requires and he must merely describe the alleged policy. Pl. Brief in Opposition, ECF No. 10

at 4. This is false. More than conclusory allegations and descriptions must be stated, and

reasonable factual support must be given for the Complaint to survive a motion to dismiss. The

Complaint contains no evidence of past incidents or knowledge by decisionmakers to show a

policy or custom. Plaintiff cannot just blindly claim that a policy or custom existed because

something happened to him personally. Therefore, these claims are dismissed without prejudice

for failure to state a claim.

2. Allegations Against Officer Morar

Officer Morar asserts that the First Amendment allegations against him must be

dismissed because he merely gave “narrowly tailored instructions” that constituted a “time,

place, and manner” regulation. ECF No. 15 at 8-9. The Court disagrees and the claims are not

dismissed.

States are permitted to regulate the time, place, and manner of speech and expression if the

regulation is content-neutral, narrowly tailored to serve a significant government interest, and the

regulation leaves open ample alternative channels of communication. Frisby v. Schultz, 487 U.S.

474, 481 (1988). To determine whether a regulation is content neutral, the court must first

2 Because the Court concludes that Plaintiff did not allege a policy or custom, it does not

consider whether Defendant’s were a moving force behind the alleged injury. See, Cty. Comm’rs

v. Brown, 520 U.S. 397, 404 (1997).

conveys. Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989). Then, the court must

determine if the regulation is narrowly tailored by determining whether it eliminates no more

speech than necessary to eliminate a legitimate concern. Id. at 804.

Officer Morar relies primarily on Fleck v. Trustees of the University of Pennsylvania to

assert that there was no First Amendment violation and just a mere time, place, and manner

restriction. See, Fleck v. Trs. Of the Univ. of Pa., 995 F.Supp. 2d 390 (E.D.Pa. 2014). In Fleck,

this Court granted summary judgment and determined there was no First Amendment violation

when police officers requested that protestors move away from the immediate entrance to a

mosque and relocate down the street. Id. 403-404. It was undisputed that the protestors were

impeding traffic at the time they were requested to relocate. Id. at 396. The Court found that the

regulation was content neutral because the officers were just trying to maintain crowd control

and were not focused on the content of the speech. Id. at 404. The Court also found that

complying with the officer’s instructions and moving down the street “would not have limited

plaintiffs’ communication with the growing crowd.” Id. It was therefore deemed narrowly

tailored. Id.

Here, the Complaint contains notable differences from the facts of Fleck. Plaintiff was not

blocking the entrance or exit of the school but was instead standing across the street. While it is

undisputed that a crowd formed around and in front of Plaintiff, there are no allegations that

traffic was impeded. These facts are sufficient to allege a non-neutral regulation that targeted the

content of Plaintiff’s speech. In addition, Officer Morar requested that Plaintiff move “three,

four, five blocks” away instead of merely down the street. Compliance with this request likely

would have limited Plaintiff’s communication with the school crowd. It would not have been a

narrowly tailored regulation that would have left open ample alternative means of

Officer Morar are not dismissed.3

B. Conspiracy (Count II)

Defendants move for dismissal of Count II, because the Complaint fails to establish the

existence of a conspiracy. We agree.

To state a claim for conspiracy under § 1983, a plaintiff must establish (1) the existence

of a conspiracy involving state action; and (2) a deprivation of civil rights in furtherance of the

conspiracy by a party to the conspiracy. Stief v. Robeson Twp., 2021 U.S. Dist. LEXIS 99431, *5

(E.D.Pa. 2021) (quoting, Rosembert v. Borough of E. Lansdowne, 14 F. Supp. 3d 631, 647 (E.D.

Pa. 2014). The plaintiff must show (1) the period of conspiracy, (2) the object of the conspiracy,

and (3) certain actions of the alleged conspirators taken to achieve that purpose. Id. (quoting,

Hanklin Fam. P’ship v. Upper Merion Twp., No. 01-1622, 2012 U.S. Dist. LEXIS 1467, 2012

WL 43599, at *17 (E.D.Pa. Jan. 6, 2012).

Here, while Plaintiff alleges that Defendants acted “in furtherance of a conspiratorial

object,” he fails to allege enough facts to establish the existence of a conspiracy. The Complaint

alleges that the school district’s security guards called the Reading police and requested a

pretextual basis to arrest Plaintiff. The Complaint then states that the Reading police responded

to the call and eventually arrested Plaintiff. However, the Complaint fails to sufficiently allege

the Reading police actually acted in concert with the District. The Complaint merely states

Reading police officers responded to the call and eventually arrested Plaintiff. There is not

enough factual support for the proposition that there was an agreement to do so as opposed to an

independent discretionary determination at the scene. Outside of the conclusory statements about

3 The same analysis would apply to Defendant City of Reading Police Officer Badge Number

160. However, it does not appear that this defendant has been served and has not filed a motion

to dismiss.

are no facts that show any kind of agreement beyond the initial call, which does not allege that

the Reading police officers agreed to anything. This is not enough to state a plausible claim for

relief. Therefore, Count II is dismissed without prejudice.

C. Failure to Train (Count III)

Defendants, the District and the City, allege Count III should be dismissed for failure to

state a claim, as the Complaint does not contain sufficient factual support to show a deliberate

and conscious choice. We agree.

To sufficiently plead a failure to train claim under 42 U.S.C. § 1983, a Plaintiff must

prove that the failure was a “deliberate” or “conscious” choice by the municipality. Grant v.

Winik, 948 F.Supp.2d 480, 513 (E.D.Pa. 2013) (citing, City of Canton v. Harris, 489 U.S. 378,

389 (1989). This requires “facts showing a deliberate choice to follow a course of action that is

made from among various alternatives without regard to the known or obvious consequences.”

Id. The court must “assess the adequacy of the training program in relation to the task the

employees must perform.” Id. at 389-90. When the city’s policymakers are on “actual or

constructive notice that a particular omission in their training program causes city employees to

violate citizen’s constitutional rights, the city may be deemed deliberately indifferent if the

policy makers choose to retain that program.” Connick v. Thompson, 563 U.S. 51, 62 (2011).

Here, Plaintiff merely alleges “the City of Reading and the Reading School District failed

to train their respective police officers, security guards, or employees, under circumstances

evidencing a reckless indifference to the rights of others, specifically, the rights to demonstrate

on public property under the First Amendment is not subject to a ‘Heckler’s Veto,’ that is,

‘Constitutional rights may not be denied simply because of hostility to their assertion or

exercise’…Speech and expressive conduct are protected whether it ‘stirs the public to anger,

Plaintiff bases this conclusion solely off his single experience. While Plaintiff is correct in

stating that a policy can be established from one single incident, the Complaint must do more

than allege that officers were not trained on particular topics. See, ECF No. 10 at 6. Instead,

Plaintiff must show a deliberate or conscious choice without regard to the known or obvious

consequences. While not necessary, this can be established by showing previous wrongdoing

coupled with a failure to remedy. The current complaint fails to meet this threshold and is

therefore dismissed without prejudice.5

D. False Imprisonment (Count IV)

Defendants, the City and Officer Morar, move to dismiss Count IV, claiming Plaintiff

was not arrested, and if he was, Officer Morar and Police Officer Badge No. 160 had probable

cause to arrest. We disagree.

To state a claim for false imprisonment under Pennsylvania law, Plaintiff “must allege

unlawful detention brought about by (1) acts intending to confine another within boundaries

fixed by another, (2) which directly or indirectly result in confinement, (3) of which the plaintiff

is conscious or by which the plaintiff is harmed. Crespo v. Mars Wrigley Confectionery US,

LLC, 2023 U.S. Dist. LEXIS 86099 (E.D.Pa. 2023). Under the Fourth Amendment to the United

States Constitution, “an arrest made without probable cause is a constitutional violation that may

4 Throughout Plaintiff’s reply brief, he cites Fed. R. Civ. P. 9(b) for the proposition that a

person’s mind may be alleged generally. See, ECF No. 10 at 6. However, the Complaint lacks

factual support to show the choice made by the District or the Department. Additionally, Plaintiff

cites multiple cases decided prior to Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009), to support his

contention that he need only show a “short plain statement,” as there is no “heightened pleading

standard” under Rule 9(b) for Section 1983 claims. See, Pl. Response, ECF No. 16 at 16. This

argument is misplaced, as the Complaint must still show a plausible claim for relief.

5 Defendant, Reading School District, also contends it had “no obligation to train its security

guards to respond to events that [did] not occur on District property and [had] no relation to

school activities.” See, District, Motion to Dismiss, ECF No. 9 at 14. Because the Court decides

that Plaintiff failed to state a claim upon which relief may be granted, it finds it unnecessary to

address this argument.

2023). Plaintiff must demonstrate: “(1) that there was an arrest; and (2) that the arrest was made

in the absence of probable cause.” Id. (citing, Dowling v. City of Phila., 855 F.2d 136, 141 (3d

Cir. 1988).

Defendants, The City and Officer Morar, first dispute that Plaintiff was arrested. They

allege that Plaintiff was not arrested, but merely seized. This Court has determined that, “while

an arrest may not culminate in a filing of formal charges, a ‘common definition of arrest’ is the

‘lawful taking of a person into custody in order that he may be forthcoming to answer for the

commission of an alleged crime.” Williams v. WCAU-TV, 555 F.Supp. 198, 204 (E.D.Pa. 1983)

(quoting, Miles v. Cmwlth. of PA., 304 A.2d 704, 707 (1973)). Here, it is clear from the

Complaint that Plaintiff was taken into custody after the police officers alleged he disturbed the

peace. In fact, he was physically handcuffed and brought to the police station. This goes beyond

a mere detention and therefore, it is clear the Complaint sets forth an arrest.

Defendants attempt to compare this situation to the facts in Grant v. City of Philadelphia,

where the court determined there was no arrest after plaintiff was placed in handcuffs for thirty

minutes after creating a loud disturbance. Grant v. City of Philadelphia, 637 F.Supp. 3d 247, 259

(E.D.Pa 2022). However, in Grant, the plaintiff was not physically taken to a police station, was

detained only to confirm his identity, and was released once the investigation was complete. Id.

Here, the Complaint alleges that Plaintiff was handcuffed, taken into physical custody in the

back of a police car, and taken to police barracks. This case is clearly distinguishable from

Grant. For the purposes of the Motion to Dismiss, Plaintiff has adequately established that he

was arrested.

Defendants next contend that even if Plaintiff was arrested, the police officers acted with

probable cause. Probable cause “exists when the ‘facts and circumstances within the officer’s

knowledge…are sufficient to warrant a prudent person, or one of reasonable caution, in

to commit an offense.” Id. at 260. (quoting, Johnson v. Campbell, 332 F.3d 199, 211 (3d Cir.

2003). Based on the facts alleged in the Complaint, Plaintiff was merely speaking and holding

written signs when the scene turned hostile. A prudent person would not conclude that Plaintiff

was committing or was about to commit an offense based off the facts in the Complaint.

Therefore, for the purposes of this Motion to Dismiss, the Count IV is not dismissed.

V. CONCLUSION

For the foregoing reasons, Defendants’ Motions to Dismiss (ECF Nos. 9, 15) are GRANTED

in part. Claims in Count I regarding Reading School District and the City of Reading are

DISMISSED WITHOUT PREJUDICE. Counts II and III of Plaintiff’s Complaint are

DISMISSED WITHOUT PREJUDICE. An appropriate Order follows.

BY THE COURT:

/s/ John M. Gallagher

JOHN M. GALLAGHER

United States District Court Judge