JENNIFER B. v. TRAFFORD BOROUGH

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

JENNIFER B., et al, )

)

Plaintiffs, )

) 2:20-cv-00542

v. )

)

TRAFFORD BOROUGH, et al, )

)

Defendants. )

OPINION

Mark R. Hornak, Chief United States District Judge

This is a civil rights action brought to recover monetary relief for alleged constitutional

violations by a local municipality (Trafford Borough) and several of its officials, namely a police

officer (Holmes), the Chief of Police (Disso), and Trafford’s municipal Code Enforcement

Officer (Hlad) (collectively “the Defendants”).

The Plaintiffs allege that the Defendants caused the unjustified removal of two minor

children from the home of the Plaintiff mother (Jennifer B.) under false pretenses—namely that

the police were instructed to remove the children by Children and Youth Services. They also

allege that the Defendants sought to force Jennifer B.’s father to evict her from the residence she

leased from him, and to cause him to be fined if he did not do so, in retaliation for the

Plaintiff/mother’s threat of legal action against the police officers for the removal of her children.

Plaintiff Timothy Sanchez—who Plaintiffs allege is in a romantic relationship with

Plaintiff Jennifer B.—also claims he is a victim of unconstitutional retaliation for his association

with Plaintiff Jennifer B, alleging that, without evidence or probable cause, the Defendant police

officers cited him for operating a motor vehicle without a license because of that romantic

relationship.

The Defendants seek to dismiss some of those claims. (ECF Nos. 9, 10.) The Plaintiffs

have responded. (ECF No. 13.) For the reasons which follow, that Partial Motion to Dismiss at

ECF No. 9 will be denied without prejudice, except as to the stand-alone claim for “fabrication

of evidence,” which the Plaintiffs concede will be deemed withdrawn. (Id. at 8.)

The Defendants first ask the Court to dismiss the whole case because the Plaintiff

Jennifer B. has filed this action using only her first name and the first initial of her last name.

They argue that the federal courts are open to the public to do the public’s business. They are

correct as far as that goes. But they miss the bigger picture. The core of the Plaintiffs’ Complaint

involves two minor children, H.J. and S.P., who are also named Plaintiffs. The Court and the

parties can take notice of the fact that Trafford is a smaller community. If Jennifer B.’s full name

is on the docket, it will identify the children like night follows day. Rather than dismiss the case,

the solution is for the Court to order that Jennifer B. file a notice on the docket under seal setting

forth her full legal name, and to then provide a copy to the Defendants, coupled with a motion

for leave to proceed via use of the “Jennifer B.” moniker, with a proposed Order. If there is

thereafter a motion or request to unseal that filing in the face of what appear to be the legitimate

interests in protecting the identity of the minor children, then the Court will take it up at that

time. Fed. R. Civ. P. 5.2(a); See also Doe v. Rider Univ., No. CV 16-4882 (BRM), 2018 WL

3756950, at *5 n.5 (D.N.J. Aug. 7, 2018) (“The public has an interest in granting anonymity

when the consequences of revealing a litigant’s identity include revelation of vulnerable parties’

identities, such as children and victims of crimes.”).

The Defendants next ask that this Court dismiss the claims at Counts IV and V as against

Hlad, Disso and Trafford. Jennifer B. pleads that Hlad and Disso retaliated against her in terms

of allegedly telling her father that he would be fined if he did not throw Jennifer B. out of her

residence (which the father owned) after Jennifer B. said that she planned on suing the involved

police officers for removing her children from her home. The Complaint pleads that as a

consequence of that conduct by those Defendants, the father/landlord has taken legal action

against Jennifer B. in order to evict her from the property.

These Defendants acknowledge that such a claim of First Amendment retaliation is

recognized in the law, and requires that the Plaintiff have engaged in constitutionally protected

conduct, that the alleged retaliation that was threatened would deter a person of ordinary

firmness for exercising their constitutional rights, and that there was some causal link between

those two things. (ECF No. 10, at 7 (citing to Conard v. Pa. State Police, 902 F.3d 178, 183–4

(3d Cir. 2018).); see Palardy v. Twp. Of Millburn, 906 F.3d 76, 80–81 (3d Cir. 2018). These

Defendants say that the alleged actions of the police officers should be classified as de minimis

and should be treated as akin to criticisms or reprimands which would not support such a claim.

(Id. at 8.)

The allegations that the police and Code Enforcement Officer, acting under the color of

state law, threatened to impose a fine on Jennifer B.’s father/landlord if he did not evict her,

which allegedly led to him beginning the legal proceedings to do just that, all because she

threatened to sue the police officers could easily be found by a jury to deter not only a person of

“ordinary firmness” from exercising a right protected by the First Amendment (to access the

courts and bring a lawsuit), but in the Court’s judgment could be found to deter a person of even

special toughness. The Plaintiffs’ allegation that, as a direct and proximate consequence of the

Defendants’ threats, the landlord (Jennifer B.’s father) has begun the process of taking legal

action to evict Plaintiff Jennifer B. especially counsels in favor of this conclusion. (See ECF No.

1, ¶ 46.) That is a tangible and substantial consequence triggered by the alleged threats of the

police officers. The claims alleged against the individual Defendants at Count IV more than

“show” a plausible claim for relief, Fowler v. UPMC Shadyside, 578 F. 3d 201, 210–11 (3d Cir.

2009), and will not be dismissed, at least not at this stage of the case.

Trafford Borough asks the Court to dismiss the claims against it (Counts IV and V) as

being insufficiently pleaded. Trafford argues that the doctrine of “respondeat superior” does not

apply to create vicarious municipal liability for the conduct of a governmental unit’s employees

or officers, unless there is a showing that the alleged unconstitutional conduct had its genesis in

or was in furtherance of a custom or policy of the municipality. (ECF No. 10, at 9.) That has

been the law for quite some time. Monell v. Dep’t of Social Services, 436 U.S. 658 (1978).

Ordinarily, such a “policy” is one made by a “final policy-maker.” Hill v. Borough of Kutztown,

455 F.3d 225, 245 (3d Cir. 2006). As to the Borough’s Code Enforcement Officer, Hlad, the

Court concludes that at this juncture: (1) the Plaintiffs have sufficiently alleged that Hlad holds a

position that could well fit that bill; (2) they have alleged that he and by him the Borough did

take action reliant on the duties of his office relative to the Plaintiff Jennifer B.; and (3) further

factual development is necessary to assess whether, under the combination of local ordinances

and Pennsylvania law, Hlad in his capacity as the Code Enforcement Officer is a policy-maker in

the relevant area of municipal business and whether that authority is final and unreviewable. Id.

The Plaintiffs have also adequately “shown” by the allegations of the Complaint that Defendants

Disso and Holmes were allegedly acting in combination with Hlad in relation to how he was

allegedly impermissibly carrying out his duties. And, if it turns out that Hlad could be found to

be such a final policy-maker, the actions of Disso and Holmes in such regards would tend to

buttress the allegations of unconstitutional policy implementation by Hlad chargeable to

Trafford. The claims against Trafford will therefore not be dismissed, at least not at this juncture.

Lastly, the Defendants move to dismiss Plaintiff Sanchez’s claim of unconstitutional

retaliation (Count III) based on qualified immunity. Sanchez asserts that he was punished by the

Trafford Police by being cited for driving without a license, without any factual or legal basis,

just because he was in a romantic relationship with Jennifer B. (ECF No. 1, ¶¶ 12, 20–24.) The

Defendants say that such does not state a valid claim of a constitutional violation, but even if it

did, the police officers here would not be subject to liability for money damages by virtue of the

doctrine of qualified immunity.

Qualified immunity shields governmental actors from money damages liability unless

they have violated a federal constitutional or statutory right, and when they did so, the

unlawfulness of their conduct was clearly established or they were plainly incompetent. Reichle

v. Howards, 566 U.S. 658, 664 (2012); Ashcroft v. al-Kidd, 563 U.S. 731, 743 (2011). For that

doctrine to apply, the Court must conclude either that the Complaint fails to set out a

constitutional claim for money damages, or that even if it does, the rights alleged to have been

violated were not “clearly established” at the time of the alleged violation. Knight v. Bobanic,

807 F. App’x 161, 163 (3d Cir. 2020); see District of Columbia v. Wesby, 138 S. Ct. 577, 589

(2018). At the Motion to Dismiss stage, the Court is to accept the facts as pleaded by the

Plaintiffs, and in the light most favorable to them. Saucier v. Katz, 533 U.S. 194, 201 (2001).

First, the First and Fourteenth Amendments protect the ability of any individual to closely

associate with another person of their choosing, Roberts v. United States Jaycees, 468 U.S. 609,

617–18 (1984), including in a consensual romantic or intimate relationship, even one that is

outside of marriage. See Lawrence v. Texas, 539 U.S. 558, 578 (2003); see also Pi Lambda Phi

Fraternity, Inc. v. Univ. of Pittsburgh, 229 F.3d 435, 441 (3d Cir. 2007) (intimate relationship

analysis under Roberts focuses on small size of the relationship, high degree of selectivity in

decisions to begin and end the relationship, and seclusion from others in critical aspects of the

relationships); Rode v. Dellarciprete, 845 F.2d 1195, 1204–05 (3d Cir. 1988) (focus is on small,

selective, secluded nature of the relationship); Starnes v. Court of Common Pleas of Butler Cty.,

No. 17-1304, 2018 WL 3586835, at *4–5, *9–10 (W.D. Pa. July 26, 2018) (collecting a

consensus of cases in denying application of qualified immunity relative to an intimate relation

claim).

It would appear to the Court that for quite some time now, the right to associate with

others, and in particular to associate for purposes of what could be fairly described as a

consensual intimate or “romantic” relationship, has been clearly established such that every law

enforcement officer would know that. Lawrence, decided in 2003, would seem to plainly and

“clearly” stand for the proposition that criminal sanctions cannot be exacted against a person

because they engage in such a relationship, particularly the most intimate of relationships. See

Christensen v. Cnty. of Boone, IL, 483 F.3d 454, 463 (7th Cir. 2007) (citing Lawrence) (intimate

relationship between non-married consenting adults is form of intimate association protected by

the Constitution); Anderson v. City of LaVergne, 371 F.3d 879, 881–82 (6th Cir. 2004) (same).1

1 To the extent the Defendants would question how “romantic” or intimate any relationship between Jennifer B. and

Sanchez actually was, they face a significant hurdle at this juncture, since at this stage of the case, the Court is

obligated to take the facts as pleaded by the Plaintiff in considering the motion to dismiss and considering the

application of qualified immunity. See Tolan v. Cotton, 572 U.S. 650, 656–57 (2014). That is why the denial of the

motion to dismiss (including as to qualified immunity) is without prejudice to the reassertion of those arguments if

later-developed facts so warrant.

In addition, the Court concludes that the Defendants’ principal reliance, (ECF No. 10, at 11–12), on Emick v.

Borough of Montoursville, No. 4:16-cv-1856, 2017 WL 2436032 at *4 (M.D. Pa. May 12, 2017), report and

recommendation adopted by 2017 WL 2424059 (M.D. Pa. June 5, 2017), for the principle that the Constitution does

not recognize a protected associational relationship with a romantic or intimate partner is misplaced. In that “natural

rights” litigation filed pro se, the Court declined to adopt the plaintiff’s assertion of violation of a constitutionally-

protected association with an inebriated passenger in the front seat of his car, or a compelled association with the

police officer conducting the involved drunk driving traffic stop (who apparently declined to accept the plaintiff’s

driver’s license issued by the “Kingdom of Heaven”). The Court is unable to draw any parallels whatsoever between

the situation in Emick and the allegations pleaded here.

And there is no fact-driven nuance to that right as it is asserted in the context of this case.

See Harper v. Cnty. of Delaware, 779 F. App’x 143, 146 (3d Cir. 2019) (right of association

claim requires Supreme Court or Circuit caselaw announcement to avoid qualified immunity).

Here, unlike for instance an excessive force claim that is factually nuanced and circumstance

specific, see White v. Pauly, 137 S. Ct. 548, 551–52 (2017), the allegations here are

straightforward and direct—the police allegedly cited Sanchez for a violation of the law because

of his romantic relationship with Jennifer B. The question is whether, on the date of the alleged

violation as to Sanchez, that right—that is the right to not be sanctioned by force of law for the

fact of a romantic or intimate relationship with another consenting adult—had been clearly

established such that every reasonable police officer would have understood that what he was

doing (as alleged by Sanchez here) violated that right. The Court concludes that it was.

First, that construct follows the contours of the underlying issue addressed and resolved

in Lawrence, namely the imposition of a criminal sanction by a state actor for certain private

activities within the ambit of an intimate relationship between two consenting unmarried adults.2

Second, as noted above, the Defendants acknowledge that it is well-settled that

government officials cannot subject a person to adverse governmental actions because the person

2 In Lawrence, that right was considered in the context of the Due Process Clause of the Fourteenth Amendment,

and here it is advanced in the context of the First Amendment’s protection of association between two consenting

unmarried adults, and particularly as to intimate non-marital associations. But for these purposes, Circuit precedent

would indicate that any such distinction as to the source of the right is not of consequence to this analysis. As our

Court of Appeals has held, while the right must be framed in light of the specific factual context of the case and not

as a broad general proposition, it need not be the case that the precise conduct at issue had been held unlawful in a

prior case if the contours of the right are sufficiently clear, since public officials may be placed on notice that their

actions violate settled law even if the circumstances are novel. Kane v. Barger, 902 F.3d 185, 194–95 (3d Cir.

2018).

In Kane, in which the right allegedly violated was the “right to bodily integrity,” our Court of Appeals relied on one

of its prior decisions involving instead a plaintiff’s “right to privacy,” when the conduct in the prior case and in the

case then at hand was similar. Id at 195–96. The core conduct at issue—a governmental sanction exacted because of

such a relationship itself—is “sufficiently factually similar,” and the “right” at issue had been sufficiently announced

such that it applied at the time of the alleged violation with “obvious clarity,” no matter the constitutional

benchmark for that right, e.g. the First as opposed to the Fourteenth Amendment. Id. at 196, 196 n.60.

engages in conduct protected by the First Amendment. Nieves v. Bartlett, 139 S. Ct. 1715, 1722

(2019); Williams v. City of Allentown, 804 F. App’x 164, 169 (3d Cir. 2020)3; Baloga v. Pittston

Area Sch. Dist., 927 F. 3d 742, 752 (3d Cir. 2019). These are not new or “murky” principles of

law, but ones coming from clear and direct announcements in Supreme Court and Courts of

Appeals cases. See Harper, 779 F. App’x at 146; Starnes, 2018 WL 3586835 at *9–10.

Here, the Complaint expressly pleads that Defendant Holmes charged Sanchez with a

motor vehicle code violation, without probable cause, in order to retaliate against Sanchez for

Sanchez’s “romantic” association with Jennifer B., an association facially protected by the First

and Fourteenth Amendments. The Complaint therefore appears to squarely fit the pleading bill

laid out in Nieves—Constitutionally protected conduct (the romantic relationship), retaliatory

action (the motor vehicle code charges), the lack of probable cause to support those charges, and

the direct causal relationship between the fact of the relationship and the charges. So, the

Complaint “shows” a claim for relief under the applicable law.

The Court also concludes that the above referenced Supreme Court and Circuit court

decisions plainly and unequivocally identify the protected rights and the allegedly

unconstitutional conduct in the context of the violations pleaded here with sufficient precision to

defeat a claim of qualified immunity. Based on those cases, the Court concludes that every police

officer, perhaps even the “plainly incompetent,” Malley v. Briggs, 475 U.S. 335, 341 (1986),

would have known that he could not bring an adverse criminal or otherwise punitive charge

against an adult based on the fact of that adult having an otherwise lawful consensual romantic or

intimate relationship with another adult. al-Kidd, 563 U.S. at 741 (discussing the “clearly

established” standard); Zaloga v. Borough of Moosic, 841 F.3d 170, 175 (3d Cir. 2016) (same

3 The allegedly unconstitutional conduct here occurred in January, 2020. Williams was decided in March, 2020, so it

would not be an “announced” case at the time of the alleged conduct, but Nieves would have been.

with respect to a First Amendment claim). The Court concludes that existing precedent from the

Supreme Court would have placed that question beyond debate. al-Kidd, 563 U.S. at 741.

Given the clarity and applicability of the Supreme Court precedent noted above, and the

direct nature of the Constitutional violation alleged by Sanchez in this case, this is a claim that

matches the precedents. Here, like in Lawrence, the claim asserted is that the Plaintiff Sanchez

was directly sanctioned because of the very existence of the protected relationship.4 Therefore,

the clearly established law is in fact “particularized to the facts of the case.” White, 137 S. Ct. at

552. The Court concludes that such is a right that was sufficiently beyond dispute at the relevant

time such that every police officer was on notice that he could not seek to impose a sanction on

one adult because of that adult’s otherwise lawful and consensual romantic or intimate

relationship with another. See Shultz v. Fayette County Court of Common Pleas, No. 14-103,

2014 WL 5439794, at *2 (W.D. Pa. Oct. 22, 2014); Gardner v. Barry, No. 1:10-cv-0527, 2010

WL 4853885, at *5–6 (M.D. Pa. Nov. 23, 2010). The Court will therefore deny the application of

qualified immunity without prejudice.

4 Here’s how the key facts in Lawrence line up with the circumstances pleaded here. In Lawrence, the police were

dispatched to a private home (check) for reasons unrelated to the criminal charge ultimately brought (check). While

there, they charged the resident’s lover for criminal charges (check) wholly unrelated to the reason for the police

dispatch (check), when there was an on-going intimate relationship between the consenting adult resident and the

other consenting adult (check and check), and the charges brought were directly the result of the private relationship

between the two consenting adults (check). The charges brought carried a very modest penalty (check), namely a

fine of $200 plus costs, but a penalty nonetheless (check), Lawrence, 539 U.S at 575.

The Supreme Court held that the criminal sanctions brought in those circumstances, albeit “minor,” were contrary to

the rights secured by the Fourteenth Amendment, and therefore reversed the state court judgment upholding the

convictions of the involved adults. Id. at 562–63, 578–79. That the two adults in Lawrence were of the same sex,

and the two adults here of different sexes, would not appear to make any difference, id at 574, to defining the right

announced by the Supreme Court in Lawrence: “The State cannot demean their existence or control their destiny by

making their private sexual conduct a crime. Their right to liberty under the Due Process Clause gives them the full

right to engage in their conduct without intervention of the government.” Id at 578 (emphasis added). If the police

officers here did charge Sanchez with an offense, minor as it may seem, because he was in a romantic relationship

with Jennifer B., then that was an impermissible “intervention of the government” into that relationship. And in the

Court’s estimation, for these purposes, every reasonable police officer would be charged with having known that.

The Partial Motion to Dismiss at ECF No. 9 is DENIED without prejudice. The Plaintiff

Sanchez’s stand-alone claim for fabrication of evidence (Count II) is deemed withdrawn.

The Defendants shall file their Answers within twenty-one (21) days of the date of the

accompanying Order. The Plaintiffs shall file a notice on the docket, under seal, setting out the

full name of Plaintiff Jennifer B coupled with a motion for leave to proceed via use of the

“Jennifer B.” pseudonym, along with a proposed Order. The Plaintiffs shall file and serve the

notice upon Defendants’ counsel within ten (10) days of the date of the Order accompanying this

Opinion.

An appropriate Order will issue.

s/ Mark R. Hornak

Mark R. Hornak

Chief United States District Judge

Dated: August 18, 2020

cc: All counsel of record