Aguilar v. Moyer

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

PRISCILLA AGUILAR, : Civil No. 3:21-CV-595

:

Plaintiff, :

:

v. : (Magistrate Judge Carlson)

:

WILLIAM MOYER, SR., :

:

Defendant. :

MEMORANDUM OPINION

I. Introduction

The instant case involves a lawsuit brought by Priscilla Aguilar against

William Moyer, Sr., an employee of the Municipal Authority of the Borough of

Shenandoah (“Water Authority”). Aguilar alleges a violation of her First

Amendment rights under 42 U.S.C. § 1983, as well as state law battery, as a result

of Moyer’s actions in obstructing her ability to record the arrest of her husband.

Moyer now moves to dismiss Aguilar’s claims, arguing that the complaint fails on

its face to state a claim against him. For the following reasons, Moyer’s motion to

dismiss will be denied.

II. Statement of Facts and of the Case

The following facts are taken from the plaintiff’s complaint, which we must

accept as true for the purposes of this motion to dismiss. On April 5, 2019, Priscilla

Aguilar’s husband, Carlos Figueroa, called Water Authority in an attempt to restore

the water connection to the couple’s house. (Doc. 1, ¶¶ 8-9). Though he was

informed that no employees were available to restore the connection, Figueroa later

noticed Moyer, a Water Authority employee, on the property. (Id., ¶ 11). Figueroa

inquired as to whether Moyer “was there to turn the water on,” to which Moyer

responded he was there to ensure the water remained off. (Id., ¶¶ 12-13). Figueroa

then asked whether Moyer could turn the water on, to which Moyer replied that he

would “need a work order” to do so. (Id., ¶ 14). Figueroa expressed his anger over

Water Authority’s apparent misrepresentation of its employees’ availability. (Id., ¶

15). He then reentered the couple’s house when Moyer threatened to call the police.

(Id., ¶¶ 16-17).

Despite Figueroa’s withdrawal from the conflict, Moyer called his son, “a

patrolman with the Borough of Shenandoah Police Department,” from his work

truck. (Id., ¶ 18). Figueroa and Aguilar then left the house and entered their parked

vehicle without starting the engine. (Id., ¶¶ 19-20). While the couple sat in their

vehicle, Moyer exited his truck and photographed Aguilar, Figueroa, and their

vehicle’s license plate. (Id., ¶ 21).

About ten minutes after Moyer placed the call to his son, his son arrived in a

police cruiser and asked Figueroa for identification. (Id., ¶¶ 22-23). Aguilar then

began recording the interaction between Figueroa and Moyer’s son using Figueroa’s

cell phone. (Id., ¶ 24). Figueroa refused to produce identification, at which point

Moyer’s son “opened the door of the vehicle, grabbed [Figueroa] by the elbow and

pulled him out, throwing him onto the ground.” (Id., ¶¶ 25-26). In response to

Figueroa’s subsequent offer to produce identification, Moyer’s son allegedly

responded, “It’s too late for that now.” (Id., ¶ 28).

At this point, Moyer, in what the plaintiff characterizes as an apparent attempt

to protect his son’s reputation as a police officer, pushed Figueroa’s cell phone out

of Aguilar’s hands. (Id., ¶¶ 29-31). Moyer then forcibly escorted Aguilar

approximately 20 feet away from the scene of Figueroa’s arrest. (Id., ¶ 32). After

moving Aguilar away, Moyer then returned and placed his knee on Figueroa’s back

while his son handcuffed him. (Id., ¶ 33).

Following the above incident, Aguilar brought the instant lawsuit against

Moyer for violating her First Amendment right to record police conduct and

committing a series of batteries against her person. (Id., ¶ 43). Specifically, with

regard to the first claim, Aguilar contends that Moyer’s actions were retaliatory and

a violation of her First Amendment rights under 42 U.S.C. § 1983. (Id., ¶ 41). Moyer

now moves to dismiss Aguilar’s claims, arguing that he did not act under color of

state law in knocking the cell phone from Aguilar’s hands, that he is entitled to

qualified immunity, and that this court cannot exercise supplemental jurisdiction

over the state law battery claim. (Doc. 9; Doc. 11).

This motion is fully briefed and is ripe for resolution. For the following

reasons, we find that the complaint sufficiently alleges a § 1983 claim against Moyer,

and thus we will deny the motion to dismiss.

III. Discussion

A. Motion to Dismiss — Standard of Review

A motion to dismiss tests the legal sufficiency of a complaint. It is proper for

the court to dismiss a complaint in accordance with Rule 12(b)(6) of the Federal

Rules of Civil Procedure only if the complaint fails to state a claim upon which relief

can be granted. Fed. R. Civ. P. 12(b)(6). With respect to this benchmark standard for

the legal sufficiency of a complaint, the United States Court of Appeals for the Third

Circuit has aptly noted the evolving standards governing pleading practice in federal

court, stating that:

Standards of pleading have been in the forefront of jurisprudence in

recent years. Beginning with the Supreme Court’s opinion in Bell

Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), continuing with our

opinion in Phillips [v. County of Allegheny, 515 F.3d 224, 230 (3d Cir.

2008)], and culminating recently with the Supreme Court’s decision in

Ashcroft v. Igbal, U.S. , 129 S. Ct. 1937 (2009), pleading standards

have seemingly shifted from simple notice pleading to a more

heightened form of pleading, requiring a plaintiff to plead more than

the possibility of relief to survive a motion to dismiss.

Fowler v. UPMC Shadyside, 578 F.3d 203, 209-10 (3d Cir. 2009).

In considering whether a complaint fails to state a claim upon which relief

may be granted, the court must accept as true all allegations in the complaint and all

reasonable inferences that can be drawn therefrom are to be construed in the light

most favorable to the plaintiff. Jordan v. Fox, Rothschild, O’Brien & Frankel, Inc.,

20 F.3d 1250, 1261 (3d Cir. 1994). However, a court “need not credit a complaint’s

bald assertions or legal conclusions when deciding a motion to dismiss.” Morse v.

Lower Merion Sch. Dist., 132 F.3d 902, 906 (3d Cir. 1997). Additionally, a court

need not “assume that a . . . plaintiff can prove facts that the . . . plaintiff has not

alleged.” Associated Gen. Contractors of Cal. v. California State Council of

Carpenters, 459 U.S. 519, 526 (1983). As the Supreme Court held in Bell Atlantic

Corp. v. Twombly, 550 U.S. 544 (2007), in order to state a valid cause of action, a

plaintiff must provide some factual grounds for relief which “requires more than

labels and conclusions, and a formulaic recitation of the elements of a cause of

actions will not do.” Id., at 555. “Factual allegations must be enough to raise a right

to relief above the speculative level.” Id.

In keeping with the principles of Twombly, the Supreme Court has

underscored that a trial court must assess whether a complaint states facts upon

which relief can be granted when ruling on a motion to dismiss. In Ashcroft v. Iqbal,

556 U.S. 662 (2009), the Supreme Court held that, when considering a motion to

dismiss, a court should “begin by identifying pleadings that, because they are no

more than conclusions, are not entitled to the assumption of truth.” Id., at 679.

According to the Supreme Court, “[t]hreadbare recitals of the elements of a cause of

action, supported by mere conclusory statements, do not suffice.” Id., at 678. Rather,

in conducting a review of the adequacy of a complaint, the Supreme Court has

advised trial courts that they must:

[B]egin by identifying pleadings that because they are no more than

conclusions are not entitled to the assumption of truth. While legal

conclusions can provide the framework of a complaint, they must be

supported by factual allegations. When there are well-pleaded factual

allegations, a court should assume their veracity and then determine

whether they plausibly give rise to an entitlement to relief.

Id., at 679.

Thus, following Twombly and Iqbal, a well-pleaded complaint must contain

more than mere legal labels and conclusions; it must recite factual allegations

sufficient to raise the plaintiff’s claimed right to relief beyond the level of mere

speculation. As the United States Court of Appeals for the Third Circuit has stated:

[A]fter Iqbal, when presented with a motion to dismiss for failure to

state a claim, district courts should conduct a two-part analysis. First,

the factual and legal elements of a claim should be separated. The

District Court must accept all of the complaint’s well-pleaded facts as

true, but may disregard any legal conclusions. Second, a District Court

must then determine whether the facts alleged in the complaint are

sufficient to show that the plaintiff has a “plausible claim for relief.” In

other words, a complaint must do more than allege the plaintiff’s

entitlement to relief. A complaint has to “show” such an entitlement

with its facts.

Fowler, 578 F.3d at 210-11.

As the Court of Appeals has observed:

The Supreme Court in Twombly set forth the “plausibility” standard for

overcoming a motion to dismiss and refined this approach in Iqbal. The

plausibility standard requires the complaint to allege “enough facts to

state a claim to relief that is plausible on its face.” Twombly, 550 U.S.

at 570, 127 S. Ct. 1955. A complaint satisfies the plausibility standard

when the factual pleadings “allow[ ] the court to draw the reasonable

inference that the defendant is liable for the misconduct alleged.” Iqbal,

129 S. Ct. at 1949 (citing Twombly, 550 U.S. at 556, 127 S. Ct. 1955).

This standard requires showing “more than a sheer possibility that a

defendant has acted unlawfully.” Id. A complaint which pleads facts

“merely consistent with” a defendant’s liability, [ ] “stops short of the

line between possibility and plausibility of ‘entitlement of relief.’ ”

Burtch v. Milberg Factors, Inc., 662 F.3d 212, 220-21 (3d Cir. 2011), cert. denied,

132 S. Ct. 1861 (2012).

In practice, consideration of the legal sufficiency of a complaint entails a

three-step analysis:

First, the court must “tak[e] note of the elements a plaintiff must plead

to state a claim.” Iqbal, 129 S. Ct. at 1947. Second, the court should

identify allegations that, “because they are no more than conclusions,

are not entitled to the assumption of truth.” Id., at 1950. Finally, “where

there are well-pleaded factual allegations, a court should assume their

veracity and then determine whether they plausibly give rise to an

entitlement for relief.”

Santiago v. Warminster Twp., 629 F.3d 121, 130 (3d Cir. 2010) (quoting

Iqbal, 129 S. Ct. at 1950).

In considering a motion to dismiss, the court generally relies on the complaint,

attached exhibits, and matters of public record. Sands v. McCormick, 502 F.3d 263,

268 (3d Cir. 2007). The court may also consider “undisputedly authentic

document[s] that a defendant attached as an exhibit to a motion to dismiss if the

plaintiff’s claims are based on the [attached] documents.” Pension Benefit Guar.

Corp. v. White Consol. Indus., 998 F.2d 1192, 1196 (3d Cir. 1993). Moreover,

“documents whose contents are alleged in the complaint and whose authenticity no

party questions, but which are not physically attached to the pleading, may be

considered.” Pryor v. Nat’l Collegiate Athletic Ass’n, 288 F.3d 548, 560 (3d Cir.

2002); see also U.S. Express Lines, Ltd. v. Higgins, 281 F.3d 382, 388 (3d Cir. 2002)

(holding that “[a]lthough a district court may not consider matters extraneous to the

pleadings, a document integral to or explicitly relied upon in the complaint may be

considered without converting the motion to dismiss in one for summary

judgment”). However, the court may not rely on other parts of the record in

determining a motion to dismiss, or when determining whether a proposed amended

complaint is futile because it fails to state a claim upon which relief may be granted.

Jordan v. Fox, Rothschild, O’Brien & Frankel, 20 F.3d 1250, 1261 (3d Cir. 1994).

B. This Motion to Dismiss Should Be Denied.

Aguilar first claims that Moyer violated her First Amendment rights under 42

U.S.C. § 1983. This statute provides, in relevant part, that:

Every person who, under color of [state law] subjects, or causes to be

subjected, 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 in an action at law, suit in equity, or other proper

proceeding for redress…

42 U.S.C. § 1983.

After a review of the record, we conclude that dismissal at this stage of the

proceedings would be inappropriate. The pleadings as they stand do not permit of an

answer as a matter of law as to whether Moyer acted under color of state law at the

time of this incident. Furthermore, without some further factual development we

cannot conclude that Moyer is entitled to qualified immunity, and we will retain

supplemental jurisdiction over the state law battery claim. Accordingly, this motion

to dismiss will be denied.

1. Factual Issues Do Not Allow Us to Conclude that Moyer Did Not

Act Under Color of State Law

Moyer first argues that he did not act under color of state law in pushing the

phone from Aguilar’s hands. At this stage of the proceedings, we cannot conclude

that Moyer’s actions fell outside the color of law.

In order to claim First Amendment retaliation, a plaintiff:

Must show (1) that [the defendant] engaged in a protected activity, (2)

that defendant[’s] retaliatory action was sufficient to deter a person of

ordinary firmness from exercising his or her rights, and (3) that there

was a causal connection between the protected activity and the

retaliatory action. A defendant may defeat the claim of retaliation by

showing that it would have taken the same action even if the plaintiff

had not engaged in the protected activity.

Lauren W. v. DeFlaminis, 480 F.3d 259, 267 (3d Cir. 2007) (citations omitted). As

we have explained, Moyer argues that the plaintiff has not stated a claim against him

under § 1983 because he was not acting under color of state law. We disagree.

We note at the outset that “action under state law must be addressed after

considering the totality of the circumstances and cannot be limited to a single factual

question.” Harvey v. Plains Twp. Police Dep’t, 635 F.3d 606, 607 (3d Cir. 2011).

However, “the traditional definition of action under color of state law… requires that

one liable under § 1983 ‘have exercised power possessed by virtue of state law and

made possible only because the wrongdoer is clothed with the authority of state

law.’” Abbott v. Latshaw, 164 F.3d 141, 146 (3d Cir. 1998) (quoting West v. Atkins,

487 U.S. 42, 49 (1988)). Additionally, while “purely private acts which are not

furthered by any actual or purported state authority are not acts under color of state

law,” it is also true that “acts of a state or local employee in [his] official capacity

will generally be found to have occurred under color of state law… whether the

complained of conduct was in furtherance of the state’s goals or constituted an abuse

of official power.” Barna v. City of Perth Amboy, 42 F.3d 809, 815-16 (3d Cir. 1994)

(citations omitted). The Third Circuit has held that “a state employee who pursues

purely private motives and whose interaction with the victim is unconnected with

his execution of his official duties does not act under color of law.” Bonenberger v.

Plymouth Twp., 132 F.3d 20, 24 (3d Cir. 1997) (emphasis added).

In the instant case, we cannot conclude on the pleadings alone that Moyer did

not act under color of state law. It is undisputed that Moyer holds a position as a

government employee. For his part, Moyer argues that he acted “in a purely private,

individual capacity” in interfering with Aguilar’s recording of her husband’s arrest.

(Doc. 11, at 11). However, according to the complaint, on the day of the incident

Moyer told Figueroa that he was at the residence “to make sure the water was off.”

(Doc. 1, ¶ 13). This would suggest that Moyer was at the residence in his capacity

as a Water Authority employee. Further, Moyer’s action—hitting the phone out of

Aguilar’s hand—was intertwined with several other actions, including contacting

police and interfering with the subsequent arrest by escorting Aguilar away and

incapacitating Figueroa. These actions raise questions as to whether Moyer’s threat

of police intervention would have been possible without his presence as a Water

Authority employee, as well as whether he used his official position as authority to

assist with an arrest. Indeed, on the pleadings alone, it is impossible to extricate one

action—knocking the cell phone from Aguilar’s hands—from the totality of the

circumstances of the entire incident. See e.g., DeForte v. Borough of Worthington,

2017 WL 2445890, at *14 (W.D. Pa. June 6, 2017) (denying a motion to dismiss

where it was unclear whether the defendant, a municipal employee, was acting under

color of state law).

Thus, the events leading to the instant case do not permit an answer as a matter

of law based upon the pleadings with respect to Moyer’s involvement in this episode

a a Water Authority employee, and it cannot be said as a matter of law at this early

stage of the case that Moyer was not acting under color of state law for purposes of

§ 1983. We therefore cannot conclude that the plaintiff has failed to satisfy this

element of her First Amendment claim. Accordingly, we will deny the defendant’s

motion to dismiss with respect to Aguilar’s First Amendment claim.

2. Moyer is Not Entitled to Qualified Immunity.

Moyer alternatively argues that he is entitled to qualified immunity from

Aguilar’s First Amendment claim. At this juncture we cannot determine the extent

to which qualified immunity may be available to Moyer.

“Qualified immunity shields government officials from civil damages

liability unless the official violated a statutory or constitutional right that was clearly

established at the time of the challenged conduct.” Reichle v. Howards, 566 U.S.

658, 664 (2012). A qualified immunity analysis involves two questions: whether the

official violated a statutory or constitutional right, and whether that right was clearly

established at the time of the challenged conduct. Ashcroft v. al-Kidd, 563 U.S. 731,

735 (2011). Lower courts have the discretion to decide which question to analyze

first. Pearson v. Callahan, 555 U.S. 223, 236 (2009). The Supreme Court has

cautioned courts to “think carefully before expending scarce judicial resources to

resolve difficult and novel questions of constitutional or statutory interpretation that

will have no effect on the outcome of the case.” Id. (internal quotations omitted); see

also al-Kidd, 563 U.S. at 735.

An official’s conduct violates clearly established law when, “at the time of the

challenged conduct, ‘[t]he contours of [a] right [are] sufficiently clear’ that every

‘reasonable official would [have understood] that what he is doing violates that

right.’” al-Kidd, 563 U.S. at 741 (quoting Anderson v. Creighton, 483 U.S. 635, 640

(1987)). The Supreme Court has stated that this standard does not require a case

directly on point but requires that “existing precedent must have placed the statutory

or constitutional question beyond debate.” al-Kidd, 563 U.S. at 741. “When properly

applied, [qualified immunity] protects all but the plainly incompetent or those who

knowingly violate the law.” Id. at 743 (quoting Malley v. Briggs, 475 U.S. 335, 341

(1986)); see also Taylor v. Barkes, 575 U.S. 822 (2015).

The dispositive question that the court must ask is “whether the violative

nature of particular conduct is clearly established.” Mullenix v. Luna, 577 U.S. 7, 12

(2015) (quoting al-Kidd, 563 U.S. at 742). The inquiry “must be undertaken in light

of the specific context of the case, not as a broad general proposition.” Id.; see also

Davenport v. Borough of Homestead, 870 F.3d 273, 281 (3d Cir. 2017). This

“clearly established” standard ensures that an official can reasonably anticipate when

his or her conduct may give rise to liability, and “protects the balance between

vindication of constitutional rights and government officials’ effective performance

of their duties.” Reichle, 566 U.S. at 664.

Here, Moyer argues that Aguilar has not sufficiently pled a constitutional

violation against him, relying on his assertion that he did not act under color of state

law. However, as previously discussed, we cannot conclude on the pleadings that

Moyer did not act under color of state law, given that the circumstances of Moyer’s

actions in interfering with Aguilar’s recording are far from clear. In the alternative,

Moyer argues that there is no clearly established law stating that government

officials outside of law enforcement can be liable for retaliating against individuals

who record police activity. However, we reject this narrow reading and find that the

right to record police activity was clearly established at the time of the underlying

incident in 2019.

The right of individuals to record public police activity has been clearly

established within the Third Circuit since 2017. See Fields v. City of Philadelphia,

862 F.3d 353, 359 (3d Cir. 2017) (“recording police activity in public falls squarely

within the First Amendment right of access to information”). In upholding this right,

Fields ruled that:

The First Amendment protects the public’s right of access to

information about their officials’ public activities. It “goes beyond

protection of the press and the self-expression of individuals to prohibit

government from limiting the stock of information from which

members of the public may draw.”

Id. (quoting First Nat’l. Bank of Bos. v. Bellotti, 435 U.S. 765, 783 (1978))

(emphasis added). This holding does not distinguish between the actions of law

enforcement and other government officials; rather, the Fields court openly

acknowledged the applicability of its ruling to all “government” officials, regardless

of position. Id.; see also Karns v. Shanahan, 879 F.3d 504, 524 n.12 (3d Cir. 2018)

(granting qualified immunity to transit officers but noting that the challenged

conduct of prohibiting recording of police activity occurred before Fields); Contreras

v. Conrad, No. 3:17-CV-02360, 2020 WL 2193429, at *10 (M.D. Pa. May 6,

2020)(same). Moyer’s argument that “there is no legal authority that would put a

municipal water employee on notice” of his potential liability for interfering with

others’ rights to record police activity therefore lacks merit. While most of the Third

Circuit’s cases on this topic address the actions of police officers, this does not

preclude the Fields ruling from extending to an individual like Moyers, a municipal

water employee who is alleged to have requested police intervention, then taken

affirmative steps to prevent the recording of this police activity while actively

intervening in this law enforcement encounter. At a minimum a qualified immunity

determination, like a state action evaluation, should await some furth development

of the factual record. Because we read Fields as prohibiting interference with the

right to record police activities by government employees generally, we find that the

right was clearly established at the time of the incident in 2019, and Moyer is not

entitled to qualified immunity based solely upon the pleadings.

Finally, because we have found that, at the pleading stage, Aguilar has

sufficiently alleged a First Amendment retaliation claim, Moyer’s argument that this

court should decline to exercise supplemental jurisdiction over the state law battery

claim is unpersuasive. Accordingly, we will deny the motion to dismiss in its

entirety.

IV. Conclusion

Accordingly, for the foregoing reasons, the defendants’ motion to dismiss

(Doc. 9) will be DENIED.

An appropriate order follows.

s/ Martin C. Carlson

Martin C. Carlson

United States Magistrate Judge