Morgan v. The City of Scranton

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

LEE MORGAN, : Civ. No. 3:23-CV-1635

:

Plaintiff, :

:

v. : (Magistrate Judge Bloom)

:

:

CITY OF SCRANTON, et al., :

:

Defendants. :

MEMORANDUM OPINION

I. Introduction

This is a civil action brought by the plaintiff, Lee Morgan

against ECTV, Lackawanna County, the City of Scranton, and Paige

Cognetti, Scranton’s mayor. (Doc. 1). Morgan alleges that the County,

the City, and Mayor Cognetti forced ECTV to cancel his local talk show,

Voice of the People, because the show promoted conservative views. (

¶¶ 33-34). Morgan asserts his claims under 42 U.S.C. § 1983 and the

Pennsylvania Constitution, alleging that by cancelling Voice of the

People, the defendants violated his free speech, equal protection, and due

process rights. ( ¶¶ 39-46).

The City of Scranton and Mayor Cognetti have filed a motion to

dismiss the complaint, arguing, among other things, that Morgan has not

sufficiently alleged a municipal liability claim against them and that they

have not been properly served.1 (Doc. 8). This motion is fully briefed and

is ripe for resolution. (Docs. 8, 12, 19). After consideration, we will grant

the motion and dismiss Morgan’s claims against the City and Mayor

Cognetti without prejudice to allow Morgan an opportunity to amend his

complaint.

II. Background

Morgan alleges that he hosted a political talk show called “Voice of

the People[,]” which aired on ECTV Network, a local television station in

Scranton, Pennsylvania. (Doc. 1 ¶¶ 1, 11-12). According to Morgan, he

often hosted guests whose views ran counter to the “prevailing ‘Liberal,’

‘Leftist’ political ideologies” in Lackawanna County and the City of

Scranton. ( ¶¶ 22-24). One of those guests was Frank Scavo, who

allegedly spoke on the show about his participation in the January 6,

2021, raid on the United States Capitol in Washington, DC. ( ¶ 25).

1 ECTV also filed a motion to dismiss, which we will address in a separate

Memorandum Opinion.

Morgan alleges that after he hosted Scavo, the backdrop of his show

was made less aesthetically pleasing and, ultimately, his show was

removed from the air. (Doc. 1 ¶¶ 30-34). According to Morgan, these

actions were taken “[t]hrough the influence of Lackawanna County and

City of Scranton government…” because his show promoted conservative

viewpoints. ( ¶ 30). In support of this contention, Morgan alleges that

“‘someone’ in Lackawanna County government was ‘not happy’ with” his

decision to host Scavo, and that Lackawanna County exerts control over

ECTV “through it’s [sic] board of commissioners.” ( ¶¶ 19, 28). He also

alleges that the City of Scranton and Mayor Cognetti control ECTV’s

funding and appoint ECTV’s board of directors. ( ¶¶ 20-21).

Morgan filed the complaint on October 3, 2023, naming ECTV,

Lackawanna County2, the City of Scranton, and Mayor Cognetti in her

official capacity. (Doc. 1). Morgan alleges that the defendants abridged

his freedom of speech in violation of the First Amendment to the United

States Constitution, denied him equal protection in violation of the

Fourteenth Amendment to the United States Constitution, and denied

2 Lackawanna County waived service of process on May 15, 2024 and

must file a responsive pleading by July 15, 2024. (Doc. 27).

him due process in violation of the Fourteenth Amendment to the United

States Constitution and the Fifth Amendment to the Pennsylvania

Constitution. ( ¶¶ 39-46).

On October 24, 2023, the City of Scranton and Mayor Cognetti

moved to dismiss the complaint, arguing, among other things, that

Morgan failed to state a municipal liability claim and failed to properly

serve them. (Doc. 8). The motion is fully briefed and ripe for resolution.

(Docs. 8, 12, 19). After consideration, we will grant the motion to dismiss

and dismiss Morgan’s claims without prejudice to him filing an amended

complaint.

III. Discussion

A. Motion to Dismiss - Standard of Review

The defendants have filed a motion to dismiss the complaint

pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. Rule

12(b)(6) permits the court to dismiss a complaint if the complaint fails to

state a claim upon which relief can be granted. Fed. R. Civ. P. 12(b)(6).

Under federal pleading standards, a complaint must set forth a “short

and plain statement of the claim showing that the pleader is entitled to

relief.” Fed. R. Civ. P. 8(a)(2).

In determining whether a complaint states a claim for relief under

this pleading standard, a court must accept the factual allegations in the

complaint as true, , 550 U.S. 544, 555

(2007), and accept “all reasonable inferences that can be drawn from

them after construing them in the light most favorable to the non-

movant.” , 20 F.3d 1250,

1261 (3d Cir. 1994). However, a court is not required to accept legal

conclusions or “a formulaic recitation of the elements of a cause of action.”

; , 556 U.S. 662, 678 (2009) (“Threadbare

recitals of the elements of a cause of action, supported by mere conclusory

statements, do not suffice”).

As the Third Circuit Court of Appeals has aptly summarized:

[A]fter , 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.” at 1950. 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. ,

515 F.3d at 234–35. As the Supreme Court instructed in ,

“[w]here the well-pleaded facts do not permit the court to infer

more than the mere possibility of misconduct, the complaint

has alleged—but it has not ‘show[n]’—‘that the pleader is

entitled to relief.’ ” , 129 S.Ct. at 1949. This “plausibility”

determination will be “a context-specific task that requires

the reviewing court to draw on its judicial experience and

common sense.”

, 578 F.3d 203, 210-11 (3d Cir. 2009).

Generally, when considering a motion to dismiss, a court relies on

the complaint and its attached exhibits, as well as matters of public

record. , 502 F.3d 263, 268 (3d Cir. 2007). A court

can 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.”

, 998 F.2d 1192, 1196 (3d Cir. 1993). Additionally,

if the complaint relies on the contents of a document not physically

attached to the complaint but whose authenticity is not in dispute, the

court may consider such document in its determination.

, 288 F.3d 548, 560 (3d Cir. 2002).

However, the court may not rely on any other part of the record when

deciding a motion to dismiss. , 20 F.3d at 1261.

B. The Motion to Dismiss Will be Granted.

Morgan brings his claims against the City and Mayor Cognetti

under 42 U.S.C. § 1983 and the “Fifth Amendment” to the Pennsylvania

Constitution. (Doc. 1 ¶¶ 39-46). Morgan has not properly pled a claim

under either source of law. As an initial matter, Morgan has not stated

a claim under the “Fifth Amendment” to the Pennsylvania Constitution

because the state constitution does not contain a “Fifth Amendment.”

Nor has Morgan stated a § 1983 claim against the City of Scranton.3

A municipal entity may be liable for a constitutional violation under §

1983 if the violation was a direct result of the entity’s policy, custom, or

practice. , 436 U.S. 658,

695 (1978). However, an entity may not be held liable “solely because

injuries were inflicted by its agents or employees.”

, 503 F.3d 247, 249 (3d Cir. 2007). Rather, a

plaintiff must demonstrate a “direct causal link” between the alleged

3 Because Morgan sues Mayor Cognetti exclusively in her official

capacity, his Section 1983 claim against her is tantamount to a claim

against the City of Scranton. , 491

U.S. 58, 71, 109 S. Ct. 2304, 2312, 105 L. Ed. 2d 45 (1989) (explaining

that “a suit against a state official in his or her official capacity is not a

suit against the official but rather is a suit against the official’s office.”).

constitutional violation and the municipal policy or custom.

, 489 U.S. 378, 385 (1989).

The Supreme Court has recognized four categories of municipal

policies or customs—(1) formally approved rules, (2) unofficial

widespread customs, (3) actions of municipal policymakers, and (4)

deliberate indifference by a municipal entity. , 436 U.S. at 691;

, 475 U.S. 469, 479 (1986);

, 563 U.S. 51, 61 (2011); ,

318 F.3d 575, 584 (3d Cir. 2003). A formally approved rule is one issued

by a decisionmaker who has final authority to establish municipal policy.

, 914 F.3d 789, 798. By contrast, an

unofficial custom is a “persistent and widespread” practice that, though

uncodified, is “so permanent and well settled as to constitute a custom or

usage with the force of law.” , 436 U.S. at 691 (quoting

, 398 U.S. 144, 167–68 (1970). Finally, a municipality

is deliberately indifferent only if a “municipal actor disregarded a known

or obvious consequence of his action.”

, 520 U.S. 397, 410 (1997).

Here, Morgan has not pled any of the four categories of

liability. Morgan does not allege that ECTV downgraded his background

or cancelled his show pursuant to a rule that was formally approved by

the City or the Mayor. , 914 F.3d at 798. Nor does he

allege that a municipal policymaker, took any of the challenged actions.

, , 475 U.S. at 484 (holding that a sheriff created a

municipal policy or custom when he acted as a policymaker on one

occasion). Morgan also does not allege that the City of Scranton was

deliberately indifferent, as he does not identify any risk that the City

allegedly ignored. , 520 U.S. at

410. Finally, because Morgan merely alleges a single instance of

purported misconduct, he has not alleged that the City maintained an

unofficial widespread practice that violated his rights.

, 867 F.2d 791, 793 (3d Cir. 1989) (explaining that a plaintiff

cannot plead an unofficial custom merely by alleging “[a] single incident

by a lower level employee acting under color of law….”). Because Morgan

has not sufficiently alleged any of the four recognized theories of

liability, he has failed to state a Section 1983 claim against the City of

Scranton or Mayor Cognetti.

Accordingly, we conclude that Morgan has failed to state a claim

against the City or Mayor Cognetti in her official capacity. However,

recognizing that Morgan is a litigant, we will allow him an

opportunity to amend his complaint to endeavor to state a claim upon

which relief may be granted.

, 482 F.3d 247, 253 (3d Cir. 2007); , 363 F.3d

229, 235 (3d Cir. 2004).

Finally, Mayor Cognetti and the City argue that they have not been

properly served. (Doc. 12 at 10-12). We agree that service was improper

because, among other things, Morgan personally served the defendants

in violation of Rule 4(c)(2) and Pennsylvania law and failed to serve the

summons along with the complaint.4 Fed. R. Civ. P. 4(c)(1)-(2); Pa. R.

Civ. P 76; Pa. R. Civ. P 400; (Docs. 5-6). However, because we have

granted Morgan leave to amend his complaint and counsel has already

appeared on behalf of these defendants, we will direct that the

defendants waive service under Rule 4(d), or show good cause for failure

to waive service pursuant to Rule 4(d)(2), within 21 days from the date

4 As Mayor Cognetti and the City note, Morgan’s affidavit of service

appears to indicate that he effected service before the summons was

issued. (Docs. 5-6).

that Morgan files an amended complaint, if he chooses to do so. We

further appoint the Clerk of Court to serve a Request to Waive Service of

Summons (form AO 398) on ECTV. , No. 3:16-

CV-2060, 2016 WL 6661156, at *1 (M.D. Pa. Nov. 9, 2016), , No. 21-

1522, 2022 WL 1576758 (3d Cir. May 19, 2022).

IV. Conclusion

For the foregoing reasons, the defendants’ motion to dismiss (Doc.

8) will be GRANTED, and the claims against the City and Mayor

Cognetti will be dismissed without prejudice to Morgan filing an

amended complaint.

An appropriate order follows.

Submitted this 10th day of July 2024.

Daryl F. Bloom

United States Magistrate Judge