Elliott v. Pennsylvania Interscholastic Athletic Association, Inc.

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

JAMES R. ELLIOT, No. 3:19-CV-1934

Plaintiff, (Judge Brann)

v.

PENNSYLVANIA

INTERSCHOLASTIC ATHLETIC

ASSOCIATION, INC., (“PIAA”), et

al.,

Defendants.

MEMORANDUM OPINION

SEPTEMBER 15, 2020

I. BACKGROUND

On May 6, 2020, Plaintiff, James R. Elliot (“Elliot”) filed a three-count

amended complaint against Defendants the PIAA, Frank Majikes (“Majikes”) and

William Schoen (“Schoen”), in their individual and official capacities, and Luke

Modrovsky (“Modrovsky”). On May 20, 2020, Defendants filed a motion to

dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure to state a

claim. The Court grants in part and denies in part the Defendants’ motion.

For the claims that shall be dismissed, Plaintiff will be provided leave to

further amend his complaint.

II. DISCUSSION

A. Motion to Dismiss Standard

Under Federal Rule of Civil Procedure 12(b)(6), the Court dismisses a

complaint, in whole or in part, if the plaintiff has failed to “state a claim upon

which relief can be granted.” A motion to dismiss “tests the legal sufficiency of a

pleading”1 and “streamlines litigation by dispensing with needless discovery and

factfinding.”2 “Rule 12(b)(6) authorizes a court to dismiss a claim on the basis of a

dispositive issue of law.”3 This is true of any claim, “without regard to whether it

is based on an outlandish legal theory or on a close but ultimately unavailing one.”4

Following the Roberts Court’s “civil procedure revival,”5 the landmark

decisions of Bell Atlantic Corporation v. Twombly6 and Ashcroft v. Iqbal7

tightened the standard that district courts must apply to 12(b)(6) motions. These

cases “retired” the lenient “no-set-of-facts test” set forth in Conley v. Gibson and

replaced it with a more exacting “plausibility” standard.8

1 Richardson v. Bledsoe, 829 F.3d 273, 289 n.13 (3d Cir. 2016) (Smith, C.J.) (citing Szabo v.

Bridgeport Machines, Inc., 249 F.3d 672, 675 (7th Cir. 2001) (Easterbrook, J.).

2 Neitzke v. Williams, 490 U.S. 319, 326-27 (1989).

3 Id. at 326 (citing Hishon v. King & Spalding, 467 U.S. 69, 73 (1984)).

4 Id. at 327.

5 Howard M. Wasserman, The Roberts Court and the Civil Procedure Revival, 31 REV. LITIG.

313, 316, 319-20 (2012).

6 550 U.S. 544 (2007).

7 556 U.S. 662, 678 (2009).

8 Iqbal, 556 U.S. at 670 (citing Conley v. Gibson, 355 U.S. 41 (1957)) (“[a]cknowledging that

Accordingly, after Twombly and Iqbal, “[t]o 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.’”9 “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.”10 “Although the

plausibility standard does not impose a probability requirement, it does require a

pleading to show more than a sheer possibility that a defendant has acted

unlawfully.”11 Moreover, “[a]sking for plausible grounds . . . calls for enough facts

to raise a reasonable expectation that discovery will reveal evidence of

[wrongdoing].”12

The plausibility determination is “a context-specific task that requires the

reviewing court to draw on its judicial experience and common sense.”13 No

matter the context, however, “[w]here a complaint pleads facts that are ‘merely

consistent with’ a defendant’s liability, it ‘stops short of the line between

possibility and plausibility of entitlement to relief.’”14

When disposing of a motion to dismiss, the Court “accept[s] as true all

factual allegations in the complaint and draw[s] all inferences from the facts

9 Id. at 678 (quoting Twombly, 550 U.S. at 570).

10 Id. at 678.

11 Connelly v. Lane Const. Corp., 809 F.3d 780 (3d Cir. 2016) (Jordan, J.) (internal quotations

and citations omitted).

12 Twombly, 550 U.S. at 556.

13 Iqbal, 556 U.S. at 679.

alleged in the light most favorable to [the plaintiff].”15 However, “the tenet that a

court must accept as true all of the allegations contained in the complaint is

inapplicable to legal conclusions.”16 “Threadbare recitals of the elements of a

cause of action, supported by mere conclusory statements, do not suffice.”17

As a matter of procedure, the United States Court of Appeals for the Third

Circuit has instructed that:

Under the pleading regime established by Twombly and Iqbal, a court

reviewing the sufficiency of a complaint must take three steps. First, it

must tak[e] note of the elements [the] plaintiff must plead to state a

claim. Second, it should identify allegations that, because they are no

more than conclusions, are not entitled to the assumption of truth.

Finally, [w]hen there are well-pleaded factual allegations, [the] court

should assume their veracity and then determine whether they plausibly

give rise to an entitlement to relief.18

“Generally, consideration of a motion to dismiss under Rule 12(b)(6) is

limited to consideration of the complaint itself.”19 Typically, to consider materials

outside the complaint, a motion to dismiss must be converted to a motion for

summary judgment.20 However, “[c]onsideration of materials outside the

complaint is not entirely foreclosed on a 12(b)(6) motion.”21 It is permissible to

15 Phillips v. Cnty. of Allegheny, 515 F.3d 224, 228 (3d Cir. 2008) (Nygaard, J.).

16 Iqbal, 556 U.S. at 678 (internal citations omitted); see also Fowler v. UPMC Shadyside, 578

F.3d 203, 210 (3d Cir. 2009) (Nygaard, J.) (“After Iqbal, it is clear that conclusory or ‘bare-

bones’ allegations will no longer survive a motion to dismiss.”).

17 Iqbal, 556 U.S. at 678.

18 Connelly, 809 F.3d at 787 (internal quotations and citations omitted).

19 Faulkner v. Beer, 463 F.3d 130, 134 (2d Cir. 2006).

20 See id.; Fed. R. Civ. P. 12(d).

consider full text of documents partially quoted in complaint.22 It is also

permissible to consider documents relied upon by plaintiff in drafting the

complaint and integral to the complaint.23 “However, before materials outside the

record may become the basis for a dismissal, several conditions must be met.”24

“For example, even if a document is ‘integral’ to the complaint, it must be clear on

the record that no dispute exists regarding the authenticity or accuracy of the

document.”25 It must also be clear that there exist no material disputed issues of

fact regarding the relevance of the document.26 In this matter, I find that these

conditions have been met as to the Defendant’s attachments (PIAA’s bylaws,

policies and procedures, and official’s manual).27 I will consequently consider

these attachments.

B. Facts Alleged in the First Amended Complaint

The facts alleged in the first amended complaint, which I must accept as true

for the purposes of this motion, are as follows.

Plaintiff Elliot is an adult individual living in Scranton, Pennsylvania, and a

registered sports official with the PIAA.28 The PIAA is an organization that was

22 San Leandro Emergency Med. Group Profit Sharing Plan v. Philip Morris Cos., 75 F.3d 801,

808-09 (2d Cir. 1996).

23 Cortec Indus., Inc. v. Sum Holding L.P., 949 F.2d 42, 47-48 (2d Cir. 1991).

24 Faulkner, 463 F.3d at 134.

25 Id.; see also, e.g., Kaempe v. Myers, 367 F.3d 958, 965 (D.C. Cir. 2004); Alternative Energy,

Inc. v. St. Paul Fire and Marine Ins. Co., 267 F.3d 30, 33 (1st Cir. 2001).

26 Id.

27 See 2018-19 PIAA Constitution and By-Laws (ECF No. 20-1); 2018-19 PIAA Policies and

Procedures (ECF No. 20-2); PIAA Registered Sports Officials’ Manual (ECF No. 20-3).

established by a group of high school principals in order to “eliminate abuses,

establish uniform rules, and place interscholastic athletics in the context of

secondary education.”29 Otherwise stated, “[t]he purpose and function of [the]

PIAA is to develop and enforce rules, which are authorized or adopted by the

member schools, regulating interscholastic athletic competition.”30 As part of this

mission, the PIAA hires sports officials from a pool of qualified officials to

officiate games among members schools.31

The PIAA is divided into 12 geographic Districts in the state, with each

District having both a District Committee elected by the member schools and a

District Chairman, also elected, who represents that District on the PIAA Board of

Directors.32 Further, officials of the PIAA must join Chapters within a District

which correspond to a specific sport and area in the District where they will

officiate games.33 For the purposes of this action, it is further important to note

that each District has an Officials’ Representative, who, after being elected to the

position, serves as a member of the District Committee, assigns officials to regular

season games, and recommends officials for inter and intra District playoff

games.34 District 2, which is the District in which Elliot officiates, also has a

29 Id. at ¶ 10.

30 Id. at ¶ 11.

31 Id. at ¶¶ 14-16.

32 Id. at ¶¶ 12, 163

33 First Am. Comp. at ¶¶ 16, 18.

District (Basketball) Interpreter who aids in the interpretation of relevant

officiating rules in the District and who is selected, in part, through a

recommendation by the Officials’ Representative.35

Elliot has been a registered official with the PIAA since 1998.36 Elliot is a

member of the Scranton Basketball Chapter, the Lackawanna County Baseball

Chapter, and the Wyoming Valley Football Chapter.37 Elliot has also served as

the rules interpreter for the Scranton Basketball Chapter since 2013.38 Elliot has

further served as an official for district and state playoff games and tournaments in

each sport he officiates.39 He has thus been acknowledged by the PIAA to be a

“very good official.”40

In December 2016, Dave Elliot, Plaintiff’s brother, ran against William

Schoen for the position of the PIAA District 2 Officials’ Representative.41 In

January 2017, Schoen was declared the winner of the election.42 Soon thereafter,

due to alleged animosity towards the Elliot family for supporting Dave Elliot’s

campaign against Schoen, Schoen began retaliating against Elliot and his family.43

35 Id. at ¶¶ 45-46, 49, 51, 59, 62.

36 Id. at ¶ 17.

37 Id. at ¶ 18.

38 First Am. Compl. at ¶ 22.

39 Id. at ¶ 25.

40 Id. at ¶ 27.

41 Id. at ¶ 30.

42 Id. at ¶ 31.

Schoen first, in February and March 2017, no longer used Mr. Elliot’s sister

as the “ticket-taker” for PIAA playoff games despite past years of being hired.44

Schoen then, in September 2017, forced Elliot’s brother to transfer from the

Lackawanna League Football Chapter to the Wyoming Valley Football Chapter.45

Schoen then recommended, in December 2017, Bruce Weinstock to be the new

District 2 (Basketball) Interpreter over Elliot, despite Elliot’s qualifications for the

position and despite assurances to the contrary.46 District Chairman Frank

Majikes, as a supporter of Schoen, also participated in this recommendation.47

Further, in 2017 and 2018, following Schoen’s election, despite being regularly

assigned to officiate such games, Schoen did not assign Elliot to a state playoff

game.48 In response to Schoen’s actions, Elliot then felt forced to transfer from the

Lackawanna County Football Chapter to the Wyoming Valley Football Chapter.49

Out of fear of further retaliation, Elliot decided to run against Schoen in the

2018 Officials’ Representative election.50 As a local chapter nomination is

required to run for the position, Schoen attempted to dissuade the Wyoming Valley

Football Chapter from nominating Elliot.51 Elliot was thus instead nominated to

44 Id. at ¶ 36.

45 Id. at ¶¶ 37-38.

46 See id. at ¶¶ 39-66, 74-79, 81-82.

47 Id. at ¶¶ 4, 68-73, 81.

48 First Am. Comp. at ¶¶ 85-86, 92, 95, 106.

49 Id. at ¶¶ 100-01, 104.

50 Id. at ¶ 112.

the position by the Scranton Basketball Chapter.52 During the election, Luke

Modrovsky, departmental intern and sports official for the PIAA, provided “up-to-

date election tabulation” to certain officials, including Schoen and Majikes, in

order to support Schoen’s re-election.53 Finally, in 2019, despite being previously

assigned to such games, Elliot was not assigned to any District 2 basketball playoff

games by Majikes, who had been delegated the responsibility, in conjunction with

third party Joe Ross, by Schoen.54

C. Analysis

Elliot alleges three different claims against the PIAA, Majikes, Schoen, and

Modrovsky in response to this course of events. These claims are a 42 U.S.C. §

1983 (“Section 1983”) retaliation claim, a violation of Pennsylvania’s Non-Profit

Corporation Act (“NPCA”), and a breach of contract claim under Pennsylvania

Law.55

1. Plaintiff’s Section 1983 Claim

Section 1983 provides a cause of action to redress violations of federal law

committed by state officials.56 Section 1983 is not a source of substantive rights;

rather, it merely provides a remedy for violations of constitutional rights.57 Here,

52 Id. at ¶¶ 120.

53 First Am. Comp. ¶¶ 7, 123-24.

54 Id. at ¶¶ 132-34, 138, 142.

55 Id. at ¶¶ 146-155, 155-161, 221-22, 224.

56 See 42 U.S.C. § 1983.

Elliot brings his Section 1983 claims against the PIAA and its officials for alleged

retaliation against Elliot, for certain speech, in violation of the First Amendment.

“The First Amendment right to free speech includes not only the affirmative

right to speak, but also the right to be free from retaliation by a public official for

the exercise of that right.”58 To bring a claim, under Section 1983, for First

Amendment retaliation, the plaintiff must prove “(1) that he ‘engaged in [First

Amendment-]protected activity,’ (2) that the defendant’s allegedly retaliatory

action was ‘sufficient to deter a person of ordinary firmness from exercising [his

First Amendment] rights,’ and (3) that there was a ‘causal connection between the

protected activity and the retaliatory action.’”59

Additionally, as applied to governmental entities, to hold such an entity

liable under Section 1983, the plaintiff’s constitutional rights must have been

violated by an official policy or custom of the entity.60 As applied to individual

defendants, “[t]he Third Circuit has recognized that ‘there are two theories of

supervisory liability, one under which supervisors can be liable if they established

and maintained a policy, practice or custom which directly caused constitutional

harm, and another under which they can be liable if they participated in violating

58 McGee v. Conyngham Township, 2018 WL 2045437, at *3 (M.D. Pa. 2018) (internal

citations and quotations omitted).

59 Id. at *3 (quoting Lauren W ex rel. Jean W v. DeFlaminis, 480 F.3d 259, 267 (3d Cir. 2007)).

60 Watson v. Witmer, 183 F.Supp.3d 607, 614 (M.D. Pa. 2016) (citing Monell v. Dep’t of Soc.

plaintiff’s rights, directed others to violate them, or as the persons in charge, had

knowledge of and acquiesced in their subordinates’ violations.’”61

Defendants contend that Elliot’s Section 1983 claims fail for multiple

reasons. First, for all the allegedly retaliatory acts that occurred before Elliot ran

for the Officials’ Representative position himself, Defendants argue that, to the

extent that such acts can be deemed retaliatory, they can only be deemed to be

retaliation against Elliot’s brother and not against Elliot himself because Elliot was

not exercising any personal First Amendment rights by simply supporting his

brother.62 Second, Defendants claim that Elliot has failed to show that any policy

or practice of the PIAA has caused harm to Elliot; rather, such harm has only

allegedly been caused by certain individuals within the PIAA.63 Third, Defendants

claim that to the extent the Section1983 claim is brought against Schoen, Majikes,

and Modrovksy, the individuals either were without authority to individually act on

the issues which aggrieved Elliot or that, for the acts that occurred after Elliot

personally ran for the Officials’ Representative position, Elliot was not sufficiently

harmed to be able to assert his claims.64 In examining these challenges, the Court

will first turn to the proper Defendants in the action before turning to whether all

the elements of a First Amendment retaliation claim are met.

61 Fielder v. Stroudsburg Area School District, 427 F.Supp.3d 539, 551 (M.D. Pa. 2019)

(quoting Parkell v. Danberg, 833 F.3d 313, 330 (3d Cir. 2016)).

62 Defs’ Brief in Support of Mot. to Dismiss Am. Compl. (ECF. No. 20) at 13-14.

63 Id. at 14-17.

a. The PIAA’s Liability as an Entity

Defendants argue that the PIAA is an inappropriate defendant in this action

because, as an organization, it can only be held liable if there was a “policy,

practice, or custom” which resulted in the deprivation of the plaintiff’s

constitutional rights, and Elliot has failed to allege the existence of such a policy.65

Elliot responds that the PIAA is liable because they supported the practice of

having Majikes and Schoen choose and confirm the District Interpreter, and

designate officials for playoff games, thereby validating the alleged retaliatory

actions taken by Majikes and Schoen against Elliot.66

As stated, to hold a governmental entity liable under Section 1983 for

violating a plaintiff’s constitutional rights, the rights must have been violated by an

official policy or custom of the entity.67 More specifically, “[t]o establish liability,

plaintiff must identify the challenged policy or custom, attribute it to the

municipality itself, and show a causal link between execution of the policy or

custom and the injury suffered.”68 A policy exists “when a decisionmaker

possess[ing] final authority to establish municipal policy with respect to the action

65 Id. at 14-17.

66 Ptf’s Brief in Opposition to Mot. Dismiss Am. Compl. (ECF. No. 21) at 12-14.

67 Watson, 183 F.Supp.3d at 614 (citing Monell, 436 U.S. at 680-94, 98 (1978)). Section 1983

entity liability can also be based on a failure to train theory, but Elliot, in his complaint and

briefs opposing this motion to dismiss, does not base his claims against the PIAA on any

failure to train theory. The Court, further considering that the elements of such claim are not

plead, will thus not consider liability under such theory. See Cuovo v. Pocono Mountain

School District, 2019 WL 7105560, at *4 (M.D. Pa. 2019) (discussing liability for an entity

under failure to train theory).

issues an official proclamation, policy, or edict.”69 A custom exists when the

“practices of state officials [are] so permanent and well settled as to virtually

constitute law.”70

As to causation, “the plaintiff must allege and prove facts from which it can

be inferred that the alleged policy or custom was the proximate cause of plaintiff's

harm.”71 “To establish the necessary causation, a plaintiff must demonstrate a

‘plausible nexus' or ‘affirmative link’ between the municipality's custom and the

specific deprivation of constitutional rights at issue.”72 “A sufficiently close causal

link between a known but uncorrected custom or usage and a specific violation is

established if occurrence of the specific violation was made reasonably probable

by permitted continuation of the custom.”73 Otherwise stated, the policy or custom

must be the “moving force behind an injury.74

In the context of the operation of the PIAA, at least one court within this

Circuit has decided what does and does not constitute a policy or custom with

regard to Section 1983 entity liability. In that case, Holmes v. Pennsylvania

Interscholastic Athletic Assoc., that court found that a plaintiff failed to plead the

69 Andrews v. City of Phila., 895 F.2d 1469, 1480 (3d Cir. 1990) (internal citation and

quotations omitted).

70 Id. (internal citation and quotations omitted).

71 Pearson v. Miller, 988 F. Supp. 848, 858 (M.D. Pa. 1997).

72 Bielevicz v. Dubinon, 915 F.2d 845, 850 (3d Cir.1990).

73 Id. at 851(quoting Spell v. McDaniel, 824 F.2d 1380, 1391 (4th Cir. 1987) (alterations

omitted)).

74 Chambers ex rel. Chambers v. Sch. Dist. of Philadelphia Bd of Educ., 587 F.3d 176, 193 (3d

Cir. 2009) (internal quotation marks and citation omitted); see also Dorley v. South Fayette

existence of a policy or custom of the PIAA when that plaintiff did not single out

any policy which required an assigning official to discriminate against certain

game officials in deciding who was assigned to which game, but rather, only plead

that the assignment was left to the discretion of the assignor.75 More generally, this

Court has found that where a plaintiff brings claims against individual defendants

and their employer under Section 1983, in order to proceed with that claim, the

plaintiff must actually allege a policy or custom of the employer, and not merely

that the two employees worked for the employer.76

Looking to causation, the court in Dorley v. South Fayette Twp. Sch. Dist.

found that claims against a school district had to be dismissed, under Monell, when

the plaintiff failed to allege facts connecting the district to the actions of its

individual coaching officials who instituted certain training drills in violation of a

plaintiff’s rights.77 In the context of local elections, the court in Hodinka v.

Delaware County found that where plaintiffs failed to show that a policy of

allowing certain local officials to have authority in helping to administer the

election proximately caused their injuries, the claim could not proceed on a policy

or custom theory.78 That is, the Hodinka court found that an alleged policy or

75 2006 WL 8458627, at *5 (E.D. Pa. 2006).

76 Turner v. Wetzel, 2018 WL 7253304, at *3-4 (M.D. Pa. 2018), report and recommendation

adopted, 2019 WL 480484 (M.D. Pa. 2019).

77 129 F. Supp. 3d 220, 240-42 (W.D. Pa. 2015); see also Patrick v. Great Valley School Dist

296 Fed.Appx. 258, 262-63 (3d Cir. 2008) (non-precedential) (holding same).

custom giving local officials discretion to perform certain activities, including

activities related to a local election, divorced from a causal link between that

policy and the officials’ actions, could not give rise to Section 1983 entity liability

under a policy or custom theory.79 The Hodinka court further evaluated the

plaintiff’s claims under a “policy-making authority” standard as it pertained to the

relevant officials, and found that only where that official had final unreviewable

authority to make decisions or set policy, you can find liability against the

municipality.80

Here, in his first amended complaint, Elliot does not point to any policy or

custom of the PIAA that singled him out for discrimination, nor does he point to

personal involvement by the PIAA in the decision to appoint officials. Instead, in

his amended complaint, Elliot points to a series of individual actions by Schoen,

Majikes, and Modrovsky which resulted in his injuries and which were caused by

the individual Defendants’ alleged animosity towards Elliot, not any animosity on

the part of the PIAA.81 That is, in line with Holmes v. Pennsylvania

Interscholastic Athletic Assoc., at no point in his complaint does Elliot claim that

any of the individual actions that affected him were a part of a larger policy or

79 Id.; see also Desi’s Pizza, Inc. v. City of Wilkes Barre, 2006 WL 2460881, at *29 (M.D. Pa.

2006 (dismissing claim for failing to point to policy or custom which led to deprivation of

constitutional rights); O’Neal v. Bedford County, 2017 WL 244866, at *5 (W.D. Pa. 2017)

(same).

80 Id.

custom of the PIAA to exclude him from consideration for any officiating

opportunity or any position within the PIAA. In fact, mention of a larger policy or

custom of the PIAA, in line with Turner v. Wetzel, is conspicuously absent from

Elliot’s amended complaint.

Elliot attempts to address this issue by claiming in his brief in opposition

that the playoff game nomination process and the district interpreter nomination

process are the PIAA policies which caused his injuries.82 Elliot further claims that

the PIAA has failed to specify any guidelines for nomination of people like himself

to certain assignments or positions within the PIAA.83 These declarations,

however, in line with Dorley v. South Fayette Twp. Sch. Dist. and Hodinka v.

Delaware County, fail to show how the alleged policies of the PIAA were the

driving force behind his injuries. Instead, Elliot consistently makes clear in his

amended complaint that Schoen and Majikes negative personal feelings towards

Elliot, and not the larger policies of the PIAA, drove the decision to exclude him.

That is, there is nothing in the PIAA’s policies which singled out Elliot for

disparate treatment or which would cause him injury absent the individual actions

of Schoen and Majikes. The attenuated link thus propagated by Elliot is the same

sort of link between a policy and a deprivation which has been disapproved of by

82 Ptf’s Brief in Opposition to Mot. Dismiss Am. Compl at 13.

the Dorley and Hodinka courts, and which warrants dismissal of Elliot’s municipal

liability claims against the PIAA.

Accordingly, Elliot’s Section 1983 claims against the PIAA in Count I will

be dismissed because Elliot does not allege sufficient facts supporting direct

liability against the PIAA.

b. Individual Liability against Schoen, Majikes, and

Modrovsky

Defendants also contend that Schoen, Majikes, and Modrovsky are

inappropriate individual defendants in this action because Elliot: (1) did not

properly allege that the PIAA retaliated against him so as to allow for individual

Section 1983 liability against their individual employees; (2) did not otherwise

properly allege that Modrovsky was a state actor so as to allow for his individual

Section 1983 liability; (3) and that, as it pertains to post-election events,84 did not

properly allege that Schoen was responsible for the decision to not assign Elliot to

a District playoff game for basketball in Spring 2019.85

Elliot responds that: for both pre and post-election events, Schoen and

Majikes were both official decision makers of the PIAA for the purposes of

Section 1983 liability as made clear by their binding determinations as to his game

84 As stated earlier, the Defendants dispute whether the events that occurred prior to Elliot’s

own run for office can be considered for the purposes of his First Amendment claim. See

Defs’ Brief in Support of Mot. to Dismiss Am. Compl. at 14-17. They thus only challenge

whether the individual defendants can be held liable for the post-election events.

assignments and their upper-level positions in the PIAA; and that Modrovsky was

a state actor due to his employment with the PIAA and is a proper defendant due to

his conspiring with Schoen and Majikes in their retaliation against Elliot.86

To begin with, courts within this Circuit have recognized that the PIAA is a

state actor for the purposes of § 1983 liability.87 Accordingly, courts have

recognized that actions of employees of the PIAA can give rise to individual

liability for those employees under Section 1983 where they have violated a

plaintiff’s constitutional rights because, by virtue of working for the PIAA, they

are acting under the color of state law.88 Further, as noted above, to state a Section

1983 claim against state actors in their individual capacities, a plaintiff must allege

either that the individual actors engaged in an unconstitutional policy or that they

had personal involvement in the alleged constitutional violations.89

Here, the Plaintiff clearly alleges that Schoen, Majikes, and Modrovsky were

all state actors to the extent that they worked for the PIAA, and he further clearly

alleges that they directly violated his constitutional rights by retaliating against him

for either supporting his brother’s campaign or campaigning himself for various

86 Ptf’s Brief in Opposition of Mot. Dismiss Am. Compl. at 14-18.

87 See, e.g., Rottmann v. Pennsylvania Interscholastic Ass’n., Inc., 349 F.Supp.2d 922, 926

(W.D. Pa. 2004) (citing Brentwood Acad. V. Tenn. Secondary Sch. Athletic Ass’n., 531 U.S.

288 (2001)); Holmes, 2006 WL 8458627, at *5 (citing same).

88 See Holmes, 2006 WL 8458627, at *5-6.

positions with the PIAA.90 These allegations are consistent with the pleading

standards for bringing Section 1983 claims against individual defendants.91 To the

extent that Modrovsky was not directly involved in the retaliation against Elliot as

he only assisted Schoen and Majikes and did not directly retaliate against Elliot,

the first amended complaint further makes clear that Modrovksy conspired with

Schoen and Majikes to retaliate against Elliot, which is also an acceptable method

to implicate an individual defendant in Section 1983 actions.92

As such, Elliot has sufficiently plead that the individual Defendants can be

held liable under Section 1983 so long as the allegations meet the elements of the

specific claim.

c. Elements of First Amendment claim

Having dismissed the Section 1983 claim against the PIAA and further

finding that the individual Defendants are properly alleged Defendants under

Section 1983, I now turn to whether Elliot has properly alleged the elements

90 See First Am. Compl. at ¶¶ 4-7, 35, 83-84, 92, 119-121,125, 128, 139, 148-150; see also

Wagner v. Holtzapple, 101 F.Supp.3d 462, 472 (M.D. Pa. 2015) (holding that, to assert a

Section 1983 claim against individuals, plaintiff must plead that individuals were (a) state

actors who committed certain actions, and (b) that those actions deprived the plaintiff of his

constitutional rights).

91 See Smith v. School Dist. Of Philadelphia, 112 F.Supp.2d 417, at 433 (E.D. Pa. 2000)

(holding that plaintiff adequately alleged Section 1983 claims against various school district

officials in their individual capacities by specifying that they had personal involvement in the

deprivation of his rights).

92 See Damiano v. Scranton Sch. Dist., 135 F. Supp. 3d 255, 282 (M.D. Pa. 2015) (holding that

alleged conspiracy to violate a plaintiff’s First Amendment rights implicated multiple

defendants and survived motion to dismiss); see also Dennison v. Pennsylvania Dep't of

Corr., 268 F. Supp. 2d 387, 401 (M.D. Pa. 2003) (denying summary judgment for multiple

individual defendants on First Amendment retaliation claim where defendant adequately

necessary to sustain First Amendment retaliation claims against Majikes, Schoen,

and Modrovsky. As previously stated, to properly bring a Section 1983 First

Amendment claim, the plaintiff must allege “(1) that he ‘engaged in [First

Amendment-]protected activity,’ (2) that the defendant’s allegedly retaliatory

action was ‘sufficient to deter a person of ordinary firmness from exercising [his

First Amendment] rights,’ and (3) that there was a ‘causal connection between the

protected activity and the retaliatory action.’”93

i. First Amendment Protected Activity

As to the first element, the Defendants argue that any injuries which befell

Elliot before he personally ran for the Officials’ Representative position cannot be

a result of retaliation as Elliot failed to engage in any free speech before the

election.94 That is, the Defendants specifically dispute that Elliot’s support of his

brother’s campaign constitutes protected free speech for the purposes of a First

Amendment retaliation claim.95 The Defendants thus do not challenge that any

acts which occurred after Elliot’s run for the Officials’ Representative position

constitute constitutionally protected speech.96 Elliot responds that, according to the

93 Smith, 112 F.Supp.2d at 433 (quoting DeFlaminis, 480 F.3d at 267); McGee, 2018 WL

2045437, at *3; Pribula, 599 F. Supp. 2d 564, 573 (M.D. Pa. 2009)

94 The Defendants do not dispute that Elliot engaged in protected free speech which allegedly

resulted in retaliation by personally running for the Officials’ Representative position against

Schoen. See Defs’ Brief in Support of Mot. to Dismiss Am. Compl. at 13-14.

95 Defs’ Brief in Support of Mot. to Dismiss Am. Compl. at 13-14.

governing law, his actions supporting his brother’s campaign constitute protected

free speech under the cause of action.97

The law of this Circuit makes clear that political activity, including

supporting a candidate, constitutes protected free speech for the purposes of

Section 1983 First Amendment retaliation claims.98 That is, campaigning for a

particular candidate and speaking against other candidates, in addition to

personally running for a position, has consistently been found to be a protected

activity under the First Amendment.99

Cases on this point further state that, to constitute a protected activity, the

support of political campaigns must be done as a private citizen, not as a part of

one’s public duties, and must be a matter of public concern which does not

interfere with the individual’s job duties.100 However, this point is not only

undisputed by the parties, but this Court can reasonably infer that Elliot’s support

of his brother’s campaign was done outside his official duties as an official for the

PIAA and was a matter of public concern relating to the administration of high

97 Ptf’s Brief in Opposition of Mot. Dismiss Am. Compl. at 9-12.

98 See Young v. Kisenwether, 902 F.Supp.2d 548, 555 (M.D. Pa. 2012) (quoting Brown v.

Hartlage, 456 U.S. 45, 53 (1982) (“[A] ‘candidate, no less than any other person, has a First

Amendment right to engage in the discussion of public issues and vigorously and tirelessly to

advocate his own election and the election of other candidates.’”).

99 Id. at 555; see also Ferraioli v. City of Hackensack Police Dept., 2010 WL 421098, at *5

(D.N.J. 2010) (holding that police officer’s support of candidate in labor union election

constituted protected speech under First Amendment).

100 See Ferraioli, 2010 WL 421098 at *5; see also Falco v. Zimmer, 767 Fed.Appx.288, 303-04

(3d Cir. 2019) (non-precedential) (discussing application of First Amendment in political

retaliation claims); Hill v, Borough of Kutztown, 455 F.3d 225, 241-42 (3d Cir. 2006)

school sports generally which did not interfere with his specific duties as an

official.101

As such, Elliot’s activities of supporting his brother’s campaign, and running

personally for the Officials’ Representative position clearly constitute protected

activities at this stage in the litigation.

ii. Retaliatory Action Sufficient to Deter

The Defendants further claim that for whatever alleged injuries occurred to

Elliot, they were de minimus and hardly enough to constitute a constitutional injury

because not selecting Elliot for certain games, according to the Defendants, did not

stop him from getting other assignments or otherwise deter him from the exercise

of his rights.102 Elliot responds that the Defendants’ argument fails to

acknowledge the ongoing pattern of retaliation that took place over the course of

three years as fully alleged in his amended complaint, which extends beyond

simply not being assigned to certain games.103

For First Amendment Retaliation claims, “the plaintiff must [ ] assert that an

adverse employment action was taken against her.”104 “Courts have found that

retaliatory conduct constitutes an adverse employment action when the employer

101 See id. at *5 (discussing how support of a candidate for a labor union position is a matter of

public concern unrelated to duties related to membership in the same union).

102 Defs’ Brief in Support of Mot. to Dismiss Am. Compl. at 19-20.

103 Ptf’s Brief in Opposition of Mot. Dismiss Am. Compl. at 18-20.

104 Smith v. Cent. Dauphin Sch. Dist., 419 F. Supp. 2d 639, 647 (M.D. Pa. 2005) (citing Merkle

makes decision relating to hiring, rehiring, promotion, transfer, or recall.”105 “‘On

the other hand, courts have declined to find that an employer’s actions have

adversely affected an employee’s exercise of his First Amendment rights where the

employer’s alleged retaliatory acts were criticism, false accusations, or verbal

reprimands.’”106 Specifically, the Court in Smith found an adverse action was

sufficiently alleged when a school refused to hire a plaintiff for an assistant

coaching position in retaliation for engaging in protected First Amendment

activity.107 The Court did not find it persuasive that the plaintiff was already

employed as a teacher at the school and did not consider the specific amount of

compensation of the job as a factor in their judgment so much as they considered

that it would have afforded the plaintiff some additional compensation.108 In

Ferraioli v. City of Hackensack Police Dept, the court found that simply being

relegated to a “less favorable” post within an organization, can also constitute an

adverse employment action.109

Bearing these cases in mind, as compared to the Plaintiff’s allegations

concerning a continuous series of adverse actions including being passed over for

favorable positions with the PIAA and favorable officiating appointments, it is

clear that Elliot has adequately alleged adverse employment actions sufficient to

105 Id. (citing Brennan v. Norton, 350 F.3d 399, 419 (3d Cit. 2003).

106 Id. (quoting Brennan, 350 F.3d at 419).

107 Id. at 647-48.

108 Id. at 647.

state a cause of action under the First Amendment. While the Defendants further

try to defeat this action by calling Elliot an independent contractor for the PIAA,

this Court notes that independent contractors for public entities like the PIAA can

bring First Amendment retaliation claims the same as employees.110

iii. Causal Connection between Protected Activity

and Retaliatory Action

The Defendants do not specifically dispute the causation prong of the claim

nor does the Plaintiff argue it in his opposition brief. This prong of the claim is

nevertheless clearly met as Elliot alleges acts of free speech in both supporting his

brother’s campaign and running for the Officials’ Representative position himself

followed by a series of retaliatory actions as a result of those acts of speech.111

2. Plaintiff’s Non-Profit Corporation Act Claim

The NPCA, properly referred to as the Nonprofit Corporation Law of 1988,

allows “any person aggrieved by a corporate action” to apply to the court for

relief.112 The Court first notes that, for the purposes of standing, the Pennsylvania

legislature amended Section 5793 of the NPCA in 2013 to expand those who can

sue under the statute from certain members of the corporation to any person

110 See Luongo v. Pennsylvania State Police, 156 F.Supp.3d 599, 610 (E.D. Pa. 2016) (citing Bd.

of Cnty. Comm’rs v. Umbehr, 518 U.S. 668, 673 (1996) (“In other words, independent

contractors with the government . . . are protected by the First Amendment and are treated

similarly to public employees for purposes of First Amendment retaliation claims.”).

111 See Hill, 455 F.3d at 243 (discussing causation prong of First Amendment retaliation

analysis).

“aggrieved” by a corporate action.113 As to what constitutes a corporate action

under the NPCA, Section 5791 of the statute defines such as: the election or

selection of “members, directors, members of an other body or officers of a

nonprofit corporation;” or as “that taking of any action on any matter that is

required” under the NPCA, some other relevant law, or the corporation’s

bylaws.114 Being a member includes being one with voting rights in the

corporation or one who was specially given voting rights by bylaw.115 Voting

rights means the right to vote on the election or removal of directors or some other

special body of the corporation.116 Other body is defined as some group which was

delegated powers, by bylaw, that are otherwise typically reserved to members or

directors of the corporation.117

The Defendants argue that Elliot fails to state a claim under the NPCA

because: (a) he has failed to allege a specific provision of the NPCA, or of the

PIAA’s constitutions or by-laws which has been violated; (b) there is no NPCA

provision appurtenant to this case; and (c) he does not have standing, as a volunteer

and non-member of the PIAA, to bring a claim under the NPCA.118 Elliot

113 See In re Foundation for Anglican Christian Tradition, 103 A.3d 425, 431 n.8 (Pa. Cmwlth.

Ct. 2014) (discussing expansion of statute without discussing who may now be eligible for

relief under it).

114 15 Pa.C.S. § 5791.

115 Id. at § 5103.

116 Id.

117 Id.

responds, citing the above referenced provision of the NPCA which gives courts

the authority to review corporate actions,119 alleging that the PIAA constitution

requires a fair election, which Schoen and Majikes failed to ensure.120

To be clear, the actions which Elliot challenges in his NPCA claim is limited

to the alleged failure by the PIAA to hold a free and fair election for the Officials’

Representative position as is allegedly required under the PIAA’s bylaws. First,

given the expansion of the statute to “any person aggrieved,” and given

Pennsylvania’s broad definition of aggrieved, including in the context of the

NPCA, as anyone with “immediate interest in the outcome of litigation,”121 the

Court finds that, at this stage, Elliot has alleged that he was sufficiently aggrieved

by Schoen’s, Majikes’, and the PIAA’s actions to state a claim. This is because

such election allegedly directly cost him the opportunity to become the Officials’

Representative. Second, to qualify as a challengeable corporate action, the election

would need to be such that it was either the election of a qualifying member or

official within the PIAA or a required action under the bylaws, in which the

relevant Defendants acted so as to aggrieve Elliot.122 This element is also met here

119 See 15 Pa.C.S. § 5793.

120 Ptf’s Brief in Opposition of Mot. Dismiss Am. Compl. at 20-24.

121 Petty v. Hospital Service Ass’n of Northeastern Pennsylvania, 967 A.2d 439, 448 (Pa.

Cmwlth Ct. 2009) (citing Bergdoll v. Kane, 557 Pa. 72 (Pa. 1999)); see also Traher v.

Republic First Bancorp, Inc., 432 F. Supp. 3d 533, 542 (E.D. Pa. 2020) (discussing what it

means to be aggrieved, under Pennsylvania law, for the purposes of a corporate action).

122 Ciamaichelo v. Indep. Blue Cross, 928 A.2d 407, 410 (Pa. Commw. Ct. 2007); High River

as the Defendants’ do not dispute, and as bylaws attached to the their brief in

opposition make clear, that the Officials’ Representative “shall be elected” every

two years.123 The PIAA, Schoen, Majikes, and Modrovsky acted, pursuant to this

bylaw, by conducting this election.124 If the PIAA and the other Defendants

conducted this action in such a way as to aggrieve Elliot, which is what he alleges,

the claim would be proper. This claim may proceed.

3. Plaintiff’s Breach of Contract Claim

To state a breach of contract claim in Pennsylvania, a plaintiff must plead

three elements: “(1) the existence of a contract, including its essential terms; (2) a

breach of that contract; and (3) resultant damages.”125

The Defendants argue that Plaintiff’s breach of contract claim should be

dismissed because he fails to plead the existence of a contract, or, to the extent he

pleads a contract, he does not properly plead that such contract was violated.126

Elliot responds that the PIAA bylaws and constitution are a contract between the

entities, and give rise to a claim against the PIAA for breach of contract due to its

failure to abide by the contract’s terms, i.e., to hold a fair election.127

123 2018-19 PIAA Constitution and By-Laws at 9; PIAA Registered Sports Officials’ Manual at

31.

124 Id.

125 Omicron Sys., Inc. v. Weiner, 860 A.2d 554, 564 (Pa. Super. Ct. 2004) (internal citation and

quotations omitted); see also Cessna v. REA Energy Coop., Inc., 258 F. Supp. 3d 566, 587–

88 (W.D. Pa. 2017) (applying Pennsylvania breach of contract law to claim in federal court).

126 Defs’ Brief in Support of Mot. to Dismiss Am. Compl. at 18-20.

Instructively, the court in Cessna v. REA Energy Coop., Inc. dismissed an

action brought as a breach of contract claim pursuant to violation of an entity’s

bylaws because the plaintiff failed to plead how the defendant specifically

breached particular bylaw terms.128 Similarly here, as plead, the Plaintiff’s

allegations fail to make clear how the Defendants breached a bylaw term. As

opposed to the NPCA, which allows parties aggrieved by corporate actions to bring

claims in court, and thus allows Elliot to bring claims for actions taken pursuant to

a relevant bylaw, in breach of contract claims, the plaintiff must show specific

contract terms which were violated. The relevant terms in the bylaws here,

assuming they constitute a contract, merely state that an election must be held, and

fail to specify the method and manner of the election. Therefore, as this breach

claim is based on uncertain terms not clearly violated, it will be dismissed.

4. Attorney’s Fees

Title 42 U.S.C. § 1988(b) allows for the recovery of attorney’s fees to the

prevailing party in a Section 1983 action.129 The Defendants argue that the

Plaintiff’s claim for fees should be dismissed because of his pro se status,130 and

Plaintiff asserts that such argument is not yet ripe.131 Consistent with Plaintiff’s

argument as to timing, at this stage, with some of the Plaintiff’s claims surviving

128 Cessna, 258 F. Supp. 3d at 587–88.

129 42 U.S.C. § 1988(b).

130 Defs’ Brief in Support of Mot. to Dismiss Am. Compl. at 24.

dismissal and with the remaining claims to be dismissed without prejudice there is

no prevailing party to which to award attorney’s fees, and no non-prevailing party

to which to deny attorney’s fees.132 The Court will deny Defendants’ motion at

this time as it applies to attorney’s fees.

III. CONCLUSION

Defendants’ Motion to Dismiss pursuant to Rule 12(b)(6) is granted in part

and dismissed in part. “The Federal Rules of Civil Procedure do not address the

situation in which a deficiency in a complaint could be cured by amendment but

leave to amend is not sought.”133 “Circuit case law, however, holds that leave to

amend must be given in this situation as well.”134 As such, Plaintiff is granted

leave to amend and will be given fourteen (14) days from today’s date to file an

amended complaint.

An appropriate Order follows.

BY THE COURT:

s/ Matthew W. Brann

Matthew W. Brann

United States District Judge

132 McNeil v. Pennsylvania, 2006 WL759670, at *4 (M.D. Pa. 2006) (denying defendant’s

motion to dismiss request for attorney’s fees).

133 Shane v. Fauver, 213 F.3d 113, 116 (3d Cir. 2000)