Sanchez v. Jenkins Township

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF PENNSYLVANIA

KATHLEEN SANCHEZ,

Plaintiff, CIVIL ACTION NO. 3:23-CV-01321

v. (MEHALCHICK, J.)

JENKINS TOWNSHIP, et al.,

Defendants.

MEMORANDUM

Before the Court is a motion to dismiss the amended complaint filed by Defendants

Jenkins Township (“Jenkins”) and Christopher Purcell (“Officer Purcell”) (collectively,

“Defendants”). (Doc. 10). On August 9, 2023, Plaintiff Kathleen Sanchez (“Sanchez”)

initiated this action by filing a complaint alleging claims against Defendants pursuant to 42

U.S.C. § 1983. (Doc. 1). On November 19, 2023, Sanchez filed the operative amended

complaint. (Doc. 8). On December 4, 2023, Defendants filed a motion to dismiss the

amended complaint. (Doc. 10). For the following reasons, Defendants’ motion to dismiss is

GRANTED IN PART and DENIED IN PART. (Doc. 10).

I. BACKGROUND

The following factual summary is taken from Sanchez’s amended complaint. (Doc.

8). Sanchez has lived on Chestnut Street in Jenkins for over 34 years. (Doc. 8, ¶ 8). For over

a year, Sanchez alleges she was unable to pull out of her driveway “without scraping her car

against branches,” due to the presence of a red vehicle parked across the street. (Doc. 8, ¶ 9).

Sanchez believes the red vehicle belongs to someone who either lives at or frequents 44

Mitchell Street in Jenkins. (Doc. 8, ¶ 10). Sanchez “attempted several times to discuss the

situation,” with the residents of 44 Mitchell Street, however, these discussions often resulted

in yelling and finger pointing. (Doc. 8, ¶¶ 11-13). Despite her requests, the red vehicle’s

owner refused to stop parking across the street from Sanchez’s driveway. (Doc. 8, ¶ 13).

On October 11, 2022, the parking situation escalated when Sanchez parked across

from her driveway in the red vehicle’s typical spot. (Doc. 8, ¶ 14). According to Sanchez,

she did so to put the groceries inside her home with the intention of moving her car back

into the driveway once she was finished. (Doc. 8, ¶ 15). In response to Sanchez parking in

the red vehicle’s typical spot, the residents of 44 Mitchell Street and Sanchez engaged in a

“verbal exchange” which resulted in Sanchez moving her car and calling 911. (Doc. 8, ¶¶

16-17). Officer Purcell responded to the call and subsequently charged Sanchez with

harassment pursuant 18 PA. CONS. STAT. § 2709(a)(3) & (4). (Doc. 8, ¶¶ 20-23, at 11). The

citation Officer Purcell issued states, “Actor did harass the victim and her family over an

ongoing parking problem by use of name calling, calling victim’s husband leprechaun after

several attempts to work this out.” (Doc. 8, at 11). According to the citation, the “victim” of

the harassment was Katlyn Malloy-Wolfe, one of the residents at 44 Mitchell Street. (Doc.

8, ¶ 26, at 11).

Sanchez pled not guilty to the crime of harassment before Magisterial District Judge

Alexandra Kokura-Kravitz. (“Judge Kokura-Kravitz”) (Doc. 8, ¶ 29, at 24). On February 2,

2022, Sanchez appeared for trial; however, Officer Purcell was not present. (Doc. 8, ¶ 32).

Instead, Jenkins Police Chief Frank Mudlock (“Chief Mudlock”) appeared to prosecute the

matter on Officer Purcell’s behalf. (Doc. 8, ¶ 32). Judge Kokura-Kravitz continued the

matter for sixty days with the understanding that, so long as there were no additional

incidents between Sanchez and the residents of 44 Mitchell Street, she would find Sanchez

not guilty. (Doc. 8, ¶ 36). On April 23, 2023, Sanchez was found not guilty. (Doc. 8, ¶ 37).

In her amended complaint, Sanchez puts forth the following counts: Count I against

Jenkins under 42 U.S.C. § 1983 and Count II against Officer Purcell under 42 U.S.C. §

1983. (Doc. 8, ¶¶ 40-45, 46-48). In Count I, Sanchez alleges that Chief Mudlock’s

participation in Sanchez’s prosecution established an “illegal policy for Jenkins Township.”

(Doc. 8, ¶¶ 42-44). Sanchez alleges that as a result of this illegal policy, she “suffered

constitutional violations and damages.” (Doc. 8, ¶ 45). In Count II, Sanchez alleges that

Officer Purcell’s conduct, “including his charging Ms. Sanchez criminally,” violated her

First Amendment right to free speech and her Fourteenth Amendment to due process. (Doc.

8, ¶ 47). As a result, Sanchez alleges she suffered “substantial injury and damage.” (Doc. 8,

¶ 48). As relief, Sanchez requests damages, the amount of which to be determined at trial, as

well as attorneys’ fees and costs associated with the action. (Doc. 8, ¶¶ A-E).

On December 4, 2023, Defendants filed a motion to dismiss Sanchez’s amended

complaint. (Doc. 10). On December 18, 2023, Defendants filed a brief in support of their

motion. (Doc. 11). On December 22, 2023, Sanchez filed a brief in opposition. (Doc. 12).

On January 5, 2024, Defendants filed a reply brief. (Doc. 13). Accordingly, the motion to

dismiss has been fully briefed and is ripe for discussion. (Doc. 10; Doc. 11; Doc. 12; Doc.

13).

II. LEGAL STANDARDS

A. RULE 12(B)(6)

Rule 12(b)(6) authorizes a defendant to move to dismiss for “failure to state a claim

upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6). To assess the sufficiency of a

complaint on a Rule 12(b)(6) motion, a court must first take note of the elements a plaintiff

must plead to state a claim, then identify mere conclusions which are not entitled to the

assumption of truth, and finally determine whether the complaint’s factual allegations,

taken as true, could plausibly satisfy the elements of the legal claim. Burtch v. Milberg Factors,

Inc., 662 F.3d 212, 221 (3d Cir. 2011). In deciding a Rule 12(b)(6) motion, the court may

consider the facts alleged on the face of the complaint, as well as “documents incorporated

into the complaint by reference, and matters of which a court may take judicial notice.”

Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322 (2007).

After recognizing the required elements which make up the legal claim, a court

should “begin by identifying pleadings that, because they are no more than conclusions, are

not entitled to the assumption of truth.” Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009). The

plaintiff must provide some factual ground for relief, which “requires more than labels and

conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Bell

Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). “[T]hreadbare recitals of the elements of

a cause of action, supported by mere conclusory statements, do not suffice.” Iqbal, 556 U.S.

at 678. Thus, courts “need not credit a complaint’s ‘bald assertions’ or ‘legal

conclusions…’” Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 906 (3d Cir. 1997) (quoting

In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1429-30 (3d Cir. 1997)). The court also

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

Gen. Contractors of Cal. v. Cal. St. Council of Carpenters, 459 U.S. 519, 526 (1983).

A court must then determine whether the well-pleaded factual allegations give rise to

a plausible claim for relief. “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.” Palakovic v. Wetzel, 854 F.3d 209, 219-20 (3d Cir. 2017) (quoting

Iqbal, 556 U.S. at 678) (internal quotation marks omitted); see also Sheridan v. NGK Metals

Corp., 609 F.3d 239, 262 n.27 (3d Cir. 2010). The court must accept as true all allegations in

the complaint, and any 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, 20 F.3d 1250, 1261 (3d Cir. 1994). This “presumption of truth attaches only to

those allegations for which there is sufficient factual matter to render them plausible on their

face.” Schuchardt v. President of the U.S., 839 F.3d 336, 347 (3d Cir. 2016) (internal quotation

and citation omitted). The plausibility determination is context-specific and does not impose

a heightened pleading requirement. Schuchardt, 839 F.3d at 347.

Additionally, Federal Rule of Civil Procedure 8(a)(2) requires “a short and plain

statement of the claim showing that the pleader is entitled to relief.” Thus, a well-pleaded

complaint must recite factual allegations sufficient to raise the plaintiff’s claimed right to

relief beyond the level of mere speculation, set forth in a “short and plain” statement of a

cause of action. There is no requirement that the pleading be specific or probable.

Schuchardt, 839 F.3d at 347 (citing Phillips v. County of Allegheny, 515 F.3d at 224, 233-234 (3d

Cir. 2008). Rule 8(a) requires a “showing that ‘the pleader is entitled to relief, in order to

give the defendant fair notice of what the . . . claim is and the grounds upon which it rests.’”

Erickson v. Pardus, 551 U.S. 89, 93-94 (2007) (quoting Fed. R. Civ. P. 8(a)(2)); see also Phillips,

515 F.3d at 233 (citing Twombly, 550 U.S. at 545).

B. 42 U.S.C. SECTION 1983

Sanchez asserts her constitutional claims under 42 U.S.C. § 1983, which provides a

private cause of action for violations of federal constitutional rights. The statute provides in

pertinent part:

Every person who, under color of any statute, ordinance, regulation, custom,

or usage, of any State or Territory or the District of Columbia, 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.

Section 1983 does not create substantive rights, but instead provides remedies for rights

established elsewhere. City of Oklahoma City v. Tuttle, 471 U.S. 808, 816 (1985). To succeed

on a § 1983 claim, a plaintiff must demonstrate that the defendant, acting under color of

state law, deprived the plaintiff of a right secured by the United States Constitution. Mark v.

Borough of Hatboro, 51 F.3d 1137, 1141 (3d Cir. 1995). Further, “a defendant in a civil rights

action ‘must have personal involvement in the alleged wrongs to be liable,’ and ‘cannot be

held responsible for a constitutional violation which he or she neither participated in nor

approved.’” Baraka v. McGreevey, 481 F.3d 187, 210 (3d Cir. 2007) (internal citations

omitted). “Personal involvement can be shown through allegations of personal direction or

of actual knowledge and acquiescence.” Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir.

1988).

III. DISCUSSION

Arguing for dismissal, Defendants assert that “issuance of a citation for harassment

that prohibits conduct connected with a parking space dispute is a lawful exercise of a state

actor’s police powers and is an inappropriate basis for a First Amendment challenge.” (Doc.

11, at 8). Defendants also aver “the mere failure of the police chief to withdraw an

otherwise valid harassment citation fails to show wrongful inaction sufficient to state a

claim against [Jenkins].” (Doc. 11, at 13). In response, Sanchez avers that she has properly

pled a First Amendment claim because she was prosecuted because she called a man

leprechaun and that because Chief Mudlock should have realized an individual cannot be

prosecuted for First Amendment protected speech, his personal actions amounted to a

failure to control Officer Purcell and thus constitute “official actions of Jenkins Township.”

(Doc. 12, at 12).

A. COUNT I: SANCHEZ’S CLAIMS AGAINST JENKINS

Sanchez asserts her constitutional claim against Jenkins pursuant to 42 U.S.C. § 1983

and under a theory of municipality liability. (Doc. 8, ¶¶ 40-45). Defendants argue Sanchez

has failed to state a claim for municipal liability under 42 U.S.C. § 1983 because the

amended complaint fails to allege any policy, custom, or practice Jenkins has sustained that

give rise to her First Amendment claim. (Doc. 11, at 13-16). Sanchez argues that as Chief of

Police, Chief Mudlock’s actions and omissions serve as Jenkins’ policy. (Doc. 12, at 10-11).

A municipal body or other local governmental unit is a “person” subject to suit

under 42 U.S.C. § 1983. The Supreme Court has held that:

Congress did intend municipalities and other local government units to be

included among those persons to whom §1983 applies. Local governing

bodies, therefore, can be sued directly under § 1983 for monetary, declaratory,

or injunctive relief where . . . the action that is alleged to be unconstitutional

implements or executes a policy, statement, ordinance, regulation, or decision

officially adopted and promulgated by that body's officers. Moreover,

although the touchstone of the § 1983 action against a government body is an

allegation that official policy is responsible for a deprivation of rights

protected by the Constitution, local governments, like every

other § 1983 ‘person,’ by the very terms of the statute, may be sued for

constitutional deprivations visited pursuant to governmental ‘custom’ even

though such a custom has not received formal approval through the body's

official decisionmaking channels.

Monell v. Dep’t of Social Servs., 436 U.S. 658, 690-91 (1978).

However, it has also been repeatedly held that a municipality may not be subjected

to Section 1983 liability on a theory of respondeat superior. See e.g. City of Canton v. Harris, 489

U.S. 378, 392 (1989); City of St. Louis v. Praprotnik, 485 U.S. 112, 121-22 (1988); Pembaur v.

Cincinnati, 475 U.S. 469, 478-79 (1986). Rather, “a plaintiff seeking to impose liability on a

municipality under § 1983 [is required] to identify a municipal ‘policy’ or ‘custom’ that

caused the plaintiff's injury.” Board of Cnty. Comm’rs of Bryan Cnty, Okla. v. Brown, 520 U.S.

397, 403 (1997); Beck v. City of Pittsburgh, 89 F.3d 966, 971 (3d Cir. 1996). The United States

Supreme Court elaborated on the showing required for municipal liability

under Section 1983, stating that:

it is not enough for a § 1983 plaintiff merely to identify conduct properly

attributable to the municipality. The plaintiff must also demonstrate that

through its deliberate conduct, the municipality was the ‘moving force’

behind the injury alleged. That is, a plaintiff must show that the municipal

action was taken with the requisite degree of culpability and must

demonstrate a direct causal link between the municipal action and the

deprivation of federal rights.

Bryan Cnty., 520 U.S. at 403.

The United States Court of Appeals for the Third Circuit has held that a municipality

can be held liable under Section 1983 “only when ‘execution of a government's policy or

custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said

to represent official policy, inflicts the injury.” Andrews v. City of Phila., 895 F.2d at 1480

(citing Monell, 436 U.S. at 694). To impose Section 1983 liability, the Third Circuit added

in Andrews that there are two ways in which a governmental policy or custom is established:

Policy is made when a ‘decisionmaker possess[ing] final authority to establish

municipal policy with respect to the action’ issues an official proclamation,

policy, or edict. Pembaur v. City of Cincinnati, 475 U.S. 469, 481 (1986). A

course of conduct is considered to be a ‘custom’ when, though not authorized

by law, ‘such practices of state officials [are] so permanent and well settled’ as

to virtually constitute law. Monell, 436 U.S. at 690.

Andrews, 895 F.2d at 1480.

For the purpose of municipality liability, citing to 53 PA. STAT. ANN. § 66902 the

Third Circuit and this Court have suggested that “a township Police Chief is not a

policymaker.” Santiago v. Warminster Twp., 629 F.3d 121, n.11 (3d Cir. 2010); see Dubas v.

Olyphant Police Dep't, No. 3:11CV1402, 2012 WL 1378694, at *5 (M.D. Pa. Apr. 20, 2012)

(The court. . . finds that borough police chiefs do not have final policy making authority

under Pennsylvania law.”). “Moreover the Supreme Court has forbidden courts from

‘assuming that municipal policymaking authority lies somewhere other than where the

applicable law purports to put it.’” Santiago, 629 F.3d at n.11 (quoting City of St. Louis v.

Praprotnik, 485 U.S. 112, 125 (1988)). Thus, Chief Mudlock cannot be considered a

policymaker for the purpose of Sanchez’s claims against Jenkins. Santiago, 629 F.3d at n.11.

However, even if Chief Mudlock could be considered a policymaker for the purpose of this

action, a review of the amended complaint reveals Sanchez has failed to adequately allege

that his actions established a municipal policy or custom. (Doc. 8). The Court is not

convinced that by attending to Sanchez’s charges Mudlock went as far as to make an official

policy. Whereas Sanchez alleges, “[a]s Chief of Jenkins Township Police Department, Chief

Mudlock was the highest law enforcement policymaker in Jenkins Township [and therefore]

[h]is actions and/or omissions constituted official policy of Jenkins Township,” she does

not allege any “action he took that could fairly be said to be a policy.” (Doc. 8, ¶ 33);

Santiago, 629 F.3d at 135. The allegation that Chief Mudlock “did not withdraw the

criminal charge against Ms. Sanchez, despite his authority to do so,” and instead “pursued

the illegal criminal prosecution of Ms. Sanchez for calling someone a ‘leprechaun,’” “does

not imply the existence of an official policy in violation of Sanchez’s constitutional rights.”

See McTernan v. City of York, 564 F.3d 636, 658 (3d Cir. 2009) (a claimant “must identify a

custom or policy, and specify what exactly that custom or policy was”); see also Santiago, 629

F.3d at 135. Accordingly, the claims against Jenkins are to be DISMISSED and

Defendants’ motion to dismiss Count I is GRANTED.

B. COUNT II: SANCHEZ’S CLAIMS AGAINST OFFICER PURCELL

Sanchez brings her constitutional claims against Officer Purcell pursuant to 42 U. S.

C. § 1983. Sanchez submits that Officer Purcell’s application of Pennsylvania’s anti-

harassment statute, Section 2709 of the Pennsylvania Crimes Code (“Section 2709”),

violated her free speech and due process rights.1 (Doc. 8, ¶¶ 46-48; Doc. 12, at 5). Officer

Purcell charged Sanchez with violating Section 2709(3) & (4). (Doc. 8, at 11). According to

Sanchez, she was “criminally charged for calling a man a leprechaun.” (Doc. 12, at 5).

Defendants contend that Officer Purcell issued Sanchez a citation because of her conduct

related to an ongoing parking dispute with her neighbors, not her speech. (Doc. 11, at 9).

Additionally, Defendants submit that because the Pennsylvania Supreme Court has upheld

challenges to Pennsylvania’s anti-harassment legislation, Officer Purcell’s issuance of a

citation to regulate harassment does not amount to a First Amendment claim. (Doc. 11, at

12).

The First Amendment dictates that “Congress shall make no law. . . abridging the

freedom of speech.” U.S. CONST. amend. I. “[A]s a general matter, the First Amendment

means that government has no power to restrict expression because of its message, its ideas,

its subject matter, or its content.” Ashcroft v. ACLU, 535 U.S. 564, 573, (2002). That said, the

Supreme Court has carved out exceptions to the absolute right to free speech for “certain

1 Sanchez clarifies that she does not intend to raise a facial attack to the

constitutionality of Pennsylvania’s harassment statute. (Doc. 12, at 5 n.2).

well-defined and narrowly limited classes of speech,” including, “the lewd and obscene, the

profane, the libelous, and . . . ‘fighting’ words—those which by their very utterance inflict

injury or tend to incite an immediate breach of the peace.” Chaplinsky v. New Hampshire, 315

U.S. 568, 571-72 (1942). Aside from these carve outs, “in public debate [] citizens must

tolerate insulting, and even outrageous, speech in order to provide adequate ‘breathing

space’ to the freedoms protected by the First Amendment.” Boos v. Barry, 485 U.S. 312, 322

(1988).

To survive a constitutional challenge, legislation implicating speech cannot be vague

or overbroad. Cf. Sypniewski v. Warren Hills Reg'l Bd. of Educ., 307 F.3d 243, 259, 266 (3d Cir.

2002). A statute or regulation must fail for vagueness if it “forbids or requires the doing of

an act in terms so vague that men of common intelligence must necessarily guess at its

meaning.” Connally v. Gen. Constr. Co., 269 U.S. 385, 391 (1926). “A law may be invalidated

facially as ‘overbroad’ if ‘a substantial number of its applications are unconstitutional,

judged in relation to the statute's plainly legitimate sweep.’” Free Speech Coal., Inc. v. Att'y

Gen. United States, 974 F.3d 408 (3d Cir. 2020) (quoting United States v. Stevens, 559 U.S. 460,

473, (2010) (quotation marks omitted))).

Section 2709(a)(3) & (4) provide a “person commits the crime of harassment when,

with intent to harass, annoy or alarm another, the person: engages in a course of conduct or

repeatedly commits acts which serve no legitimate purpose;” and “communicates to or

about such other person any lewd, lascivious, threatening or obscene words, language,

drawings or caricatures[.]” The statute defines “course of conduct” as “[a] pattern of actions

composed of more than one act over a period of time, however short, evidencing a

continuity of conduct.” 18 PA. CONS. STAT. § 2709(f). Pennsylvania courts have held that a

defendant's “intent to harass may be inferred from the totality of the circumstances” and

“[a] course of conduct ... can be based on words alone.” Commonwealth v. Lutes, 2002 PA

Super 51, 793 A.2d 949, 961 (2002) (citations omitted); see Commonwealth v. Harmer, No.

2986 EDA 2016, 2017 WL 2992391, at *3 (Pa. Super. Ct. July 14, 2017).

The intent of Pennsylvania’s anti-harassment statute is “to prevent repeated

communications of a non-legitimate nature, made with specific intent to harass the

listener.” Commonwealth v. Papp, 2023 PA Super 209, 305 A.3d 62, 79 (2023). However,

“[w]hen laws against harassment attempt to regulate oral or written expression [], however

detestable the views expressed may be, [the Court] cannot turn a blind eye to the First

Amendment implications. ‘Where pure expression is involved,’ anti-discrimination law

‘steers into the territory of the First Amendment.’” DeJohn v. Temple Univ., 537 F.3d 301 (3d

Cir. 2008) (quoting Saxe v. State Coll. Area Sch. Dist., 240 F.3d 200, 209 (3d Cir. 2001)

(internal quotations omitted)). Pennsylvania’s anti-harassment statute accounts for this

limitation explicitly, stating: “[Section 2709] shall not apply to constitutionally protected

activity.” 18 PA. CONS. STAT. § 2709(e).

Accordingly, individuals charged with harassment may argue their prosecution

violates the First Amendment. See Commonwealth v. Collins, 2022 PA Super 195, 286 A.3d

767 (2022), reargument denied (Jan. 19, 2023) (challenging conviction under Section

2709(a)(3) on First Amendment grounds); see also Papp, 305 A.3d at 77-79; see also

Commonwealth v. Hanner, 303 A.3d 752 (Pa. Super. Ct. 2023) (challenging conviction under

Section 2709(a)(4) on First Amendment grounds); see also Commonwealth v. Spone, 2023 PA

Super 238, 305 A.3d 602 (2023) (challenging conviction under Section 2709(a)(5) on First

Amendment grounds). While “[t]here is a dearth of case law interpreting what constitutes

‘constitutionally protected activity’ as to avoid prosecution for harassment,” the Supreme

Court of Pennsylvania has held that while Pennsylvania’s anti-harassment statute may

implicate speech, it is neither facially overbroad nor vague. Com. v. Hendrickson, 724 A.2d

315, 318-19 (1999). The statute is not facially overbroad because it intends to regulate

harassing conduct, not pure speech. Hendrickson, 724 A.2d at 318; see Harmer, 2017 WL

2992391, at *3. The statute is not facially vague because “when read in context, [the terms

of the statute] are sufficiently specific that it is understood what is prohibited[.]” Hendrickson,

724 A.2d at 319.

Consequently, as Sanchez does in this case, challengers of Section 2709 prosecutions

must argue the statute is unconstitutional “as applied” to them. (Doc. 12, at n.2); cf.

Hendrickson, 724 A.2d at 319. The Pennsylvania Superior Court has explained the

distinction between facial and an as applied constitutional challenges to criminal statutes as

follows:

A facial attack tests a law’s constitutionality based on its text alone and does

not consider the facts or circumstances of a particular case. An as-applied

attack, in contrast, does not contend that a law is unconstitutional as written

but that its application to a particular person under particular circumstances

deprived that person of a constitutional right. A criminal defendant may seek

to vacate his conviction by demonstrating a law’s facial or as-applied

unconstitutionality.

Commonwealth v. Bradley, 2020 PA Super 109, 232 A.3d 747, 757 (2020) (quoting

Commonwealth v. Brown, 2011 PA Super 47, 26 A.3d 485, 493 (2011)).

Thus, the relevant inquiry here to determine whether Section 2709 has been

unconstitutionally applied must shift from a review of the statutory language to a fact-

dependent, totality of the circumstances analysis. Bradley, 232 A.3d at 757.

In this case, based on the amended complaint and the citation attached as an exhibit,

it is unclear whether Sanchez was cited solely for her speech or for harassing conduct that

accompanied and/or preceded that day’s “name calling,” particularly Sanchez calling “the

victim’s husband a leprechaun.”2 (Doc. 8, ¶¶ 24, 25, at 11). Looking solely at what is

provided in the pleadings, Sanchez’s speech constitutes protected speech because name

calling, including calling someone a leprechaun, does not alone fall into any of the Supreme

Court’s carve outs for protected speech. See Johnson v. Bradford, No. CV 16-205, 2017 WL

7163940, at *4 (W.D. Pa. Nov. 30, 2017), report and recommendation adopted, No.

2:16CV205, 2018 WL 621286 (W.D. Pa. Jan. 30, 2018) (“it is clear that [Plaintiff’s] name

calling, standing alone, does not constitute fighting words and thus is protected speech”); cf.

Sypniewski v. Warren Hills Reg'l Bd. of Educ., 307 F.3d 243 (3d Cir. 2002) (“much harassment

by name calling (understood broadly) is protected.”). Sanchez’s speech cannot be said to be

“fighting words,” because while her statements may have been “unpleasant, insulting, and

possibly unwise,’ it is not clear whether the statements were intended to cause a fight.

Johnson v. Campbell, 332 F.3d 199, 213 (3d Cir. 2003).

In her amended complaint, Sanchez alleges her harassment charge was predicated on

her protected speech, specifically, her “‘calling victim's husband leprechaun.’” (Doc. 8, ¶

24). The citation Officer Purcell issued only provides that Sanchez “did harass the victim

and her family over an ongoing parking problem by use of name calling, calling victim’s

husband Leprechaun and after several attempts to work this out.” (Doc. 8, at 11). While the

State does have an interest in curbing harassing conduct, it cannot constitutionally curb

2 In addition to the facts pled in Sanchez’s amended complaint, this Court may “also

consider matters of public record, orders, exhibits attached to the complaint and items

appearing in the record of the case.” Evans v. Wetzel, No. 3:15-CV-0190, 2016 WL 1242341,

at *1 (M.D. Pa. March 30, 2016) (citing Oshiver v. Levin, Fishbein, Sedran & Berman, 38 F.3d

1380, 1384 n.2 (3d Cir. 1994)). Accordingly, the Court takes judicial notice of the exhibits

expressly incorporated by reference in Sanchez’s amended complaint.

protected speech. See Hendrickson, 555 Pa. 277, 724 A.2d 315 (1999) (“The government has a

legitimate interest in preventing the harassment of individuals. [Pennsylvania’s anti-

harassment] statute is not directed at the content of speech and is unrelated to the

suppression of free expression. Rather, the statute focuses on the manner and means of

communication and proscribes communications made with an intent to harass.”). The

statute itself forbids this use of its provisions. 18 PA. CONS. STAT. § 2709(e). However, in

reviewing Officer Purcell’s citation, it is unclear if what charged Sanchez for was engaging

in protected speech or something more. (Doc. 8, at 11).

At this early stage of litigation, the Court finds that Sanchez has sufficiently alleged

facts, which, if true, plausibly allege Officer Purcell violated her constitutional rights. (Doc.

8). Accordingly, Defendants’ motion to dismiss Count II against Officer Purcell is

DENIED.

IV. LEAVE TO AMEND

The Third Circuit Court of Appeals requires district courts to grant leave to amend in

civil rights cases when a curative amendment is conceivable. See Fletcher-Harlee Corp. v. Pote

Concrete Contractors, Inc., 482 F.3d 247, 251 (3d Cir. 2007); Grayson, 293 F.3d at 108. Here,

Sanchez has already filed an amended complaint and she does not request further

amendment in her brief in opposition to Defendants’ motion to dismiss. Accordingly, the

Court will not grant leave to amend, and this matter shall proceed on the amended

complaint. See Rothermel v. Dauphin Cty., Pennsylvania, No. 1:16-CV-1669, 2018 WL

4680093, at *14 (M.D. Pa. Sept. 28, 2018) (denying leave to amend where plaintiffs did not

request further amendment in Rule 12 briefing).

V. CONCLUSION

Based on the foregoing, Defendants’ motion to dismiss is GRANTED IN PART as to

Count I of the amended complaint against Jenkins and DENIED IN PART as to Count II

of the amended complaint against Officer Purcell. (Doc. 10). Count I against Jenkins will be

DISMISSED. (Doc. 8). An appropriate Order follows.

Dated: April 30, 2024 s/

KAROLINE MEHALCHICK

Chief United States Magistrate Judge