Ankney v. Paradise Township

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

SHAWN ANKNEY and : Civil No. 1:24-CV-1654

ANKNEY TOWING, RECOVERY & :

AUTO REPAIR SERVICE, :

:

Plaintiffs, :

:

v. :

:

PARADISE TOWNSHIP, et al., :

:

Defendants. : Judge Jennifer P. Wilson

MEMORANDUM

Before the court are motions to dismiss filed by Defendants Paradise

Township, Neal Doyle, Northern York County Regional Police Department,

Jeremy J. Neidigh, Jackson Township, and Bradley R. Dunham (collectively

“Defendants”), alleging that Plaintiffs Shawn Ankney (“Ankney”) and Ankney

Towing, Recovery & Auto Repair Service (“Ankney Towing”) (collectively,

“Plaintiffs”) have failed to state a claim upon which relief can be granted in their

amended complaint. (Docs. 15, 17, 25.) Plaintiffs allege procedural and

substantive due process claims based on being removed from the police

departments’ tow list, equal protection claims based on removal from the tow list

as well as zoning violations, and an Americans with Disabilities Act claim based

on alleged discrimination due to Ankney’s speech impediment. (Doc. 8.) For the

reasons that follow, the motions will be granted in part and denied in part.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

Plaintiff Shawn Ankney is the sole proprietor of Ankney’s Towing,

Recovery & Auto Repair Service, which is a towing company located in Spring

Grove, Pennsylvania. (Doc. 8, ¶¶ 1, 2.) Defendant Paradise Township is a

municipality in Pennsylvania, and Defendant Neal Doyle is the Zoning Officer for

Paradise Township. (Id. ¶¶ 3, 4.)) Defendant Northern York Regional Police

Department primarily serves Paradise and Jackson Townships, and Defendant

Jeremy Neidigh is an administrative lieutenant of the Police Department. (Id. ¶¶ 5,

6, 18.) Jackson Township is a municipality in Pennsylvania, and Bradley Dunham

is the currently-elected Township Supervisor, as well as the fire chief of Nashville

Volunteer Fire Company, which is a Department of Jackson Township. (Id. ¶¶ 7,

8.)1

A. Signage

Ankney owns two neighboring parcels of land, 7498 Hillside Drive, and

7500 Hillside Drive. (Id. ¶¶ 24, 25.) Ankney Towing has a sign displayed in front

of 7500 Hillside Drive advertising Ankney Towing. In 2012, non-party Rebound

Towing displayed a sign in front of 7498 Hillside Drive advertising Rebound

Towing’s business. (Id. ¶ 23, 26.) In February 2023, another non-party, Corbin

1 In their motions, Defendants state that Nashville Volunteer Fire Company was incorrectly

identified as Nashville Volunteer Fire Department. (Doc. 17, p. 1.) The court will refer to this

entity as Nashville Volunteer Fire Company, and additionally notes that Nashville Volunteer Fire

Company is not a defendant in this action.

Towing, placed an additional sign in front of 7498 Hillside Drive advertising its

towing business operating out of the property. (Id. ¶ 27.)

In late February 2023, Defendant Doyle informed Ankney that 7498 Hillside

Drive and 7500 Hillside Drive could not have three signs across the two properties;

there must be only one sign per property. (Id. ¶ 28.) As such, at that time, Corbin

Towing removed its sign. (Id. ¶ 29.) In March 2023, Rebound Towing removed

its sign because it was no longer operating at 7498 Hillside Drive, and within thirty

days, Corbin Towing placed another sign in front of the property. (Id. ¶ 30, 31.)

On July 5, 2023, Doyle sent a “notice of violation” to Ankney citing Ankney

for “expand[ing] a pre-existing nonconformity by adding an additional business.”

(Id. ¶ 33.) On July 27, 2023, Doyle sent an additional “notice of violation”

concerning the same violation. (Id. ¶ 34.) Paradise Township initiated a lawsuit

on November 14, 2023, regarding these violations and demanded $12,500 to

resolve the suit. (Id. ¶¶ 36, 37.) Paradise Township later withdrew this lawsuit,

but on the same day it withdrew the lawsuit, Doyle sent an additional “notice of

violation” for the same violation. (Id. ¶¶ 38, 40.)

B. Tow List Removal and Other Contacts with Defendants

Northern York Regional Police Department maintains a “tow list” which

“gives priority to a rotating group of tow companies[ ]” that the police department

contacts via York County 911 dispatch whenever the police department needs

towing services. (Id. ¶ 15.) Ankney Towing has been on the list since about 1972,

when Ankney Towing began operations. (Id. ¶¶ 11, 17.) Lieutenant Neidigh

allegedly maintains the tow list. (Id. ¶ 19.) On October 11, 2023, Lieutenant

Neidigh emailed certain towing companies, including Ankney Towing, with a

directive to provide certain information to continue being on the tow list in 2024.

(Id. ¶ 20.) Ankney Towing timely provided all information, but was not included

on the tow list in 2024, and was not provided an explanation for the non-inclusion.

(Id. ¶¶ 21, 22.)

Additionally, on November 13, 2023, Ankney Towing received a call to

report to an accident in Jackson Township. (Id. ¶ 42.) Ankney directed an

employee, Mr. Corbin, to report to the accident on behalf of Ankney Towing. (Id.

¶¶ 44.) Upon arrival, Defendant Bradley Dunham, present at the accident in his

capacity as fire chief of Nashville Volunteer Fire Company,2 “approached Mr.

Corbin at the accident scene and began yelling in Mr. Corbin’s face about Ankney

not being personally present despite Mr. Corbin being an employee of Ankney

Towing.” (Id. ¶ 47.) Mr. Corbin called Ankney on his cellphone, and Dunham

informed Ankney over the phone that Dunham “was going to ‘write up’ Ankney

Towing for not having oil-dry on the scene. Mr. Corbin then stated that Mr.

2 Defendant Dunham had been elected as township supervisor of Jackson Township at the time

of this incident, but had not yet begun his term as township supervisor. (Id. ¶ 46.)

Ankney was enroute with the oil-dry.” (Id. ¶ 48.) A Northern York Regional

police officer had to intervene, and Dunham then left the scene of the accident.

(Id. ¶¶ 50, 51.) Ankney Towing was not written up, nor did it ever receive a

formal or informal notice of violation, however, Ankney Towing did not receive

any additional calls for towing, despite accidents occurring which required towing.

(Id. ¶¶ 52–54.) After Ankney inquired about this situation, he was informed that

Paradise Township and Jackson Township no longer wanted Ankney Towing on

the tow list. (Id. ¶ 55.)

York County 911 Dispatch informed Ankney that Ankney Towing would

still be contacted if an individual specifically requested Ankney Towing.

However, a longtime customer of Ankney Towing requested their towing services,

but was informed by a Northern York Regional Police officer that Ankney Towing

was no longer in business. (Id. ¶ 56.) Plaintiffs also allege that receiving one write

up is not a sufficient basis for removal from the tow list because a different towing

company, Lamar Express Towing, had received approximately ten formal

violations before being removed from the list. (Id. ¶ 47.)

Ankney alleges that he has had a speech impediment since childhood and, as

a result, he has difficulty speaking clearly. (Id. ¶¶ 60, 61.) Ankney alleges that

members of the Nashville Volunteer Fire Company have mocked Ankney for his

speech impediment while he was responding to accident scenes, and Dunham has

observed this behavior and joined in laughing. (Id. ¶¶ 62, 63.)

On an unspecified date, Paradise Township refused to process Ankney’s

2024 junk yard license application, resulting in Ankney Towing being unable to

perform junk yard operations in 2024. (Id. ¶¶ 65, 66.) Ankney attempted to

discuss the application with Doyle when Doyle drove to the Ankney Towing

property to take a picture. However, Doyle refused to discuss it, mocked Ankney

for his speech impediment, and drove away. (Id. ¶ 68.)

In 2023, Ankney applied for a fire bay permit for the 7500 Hillside Drive

property. (Id. ¶ 72.) At a February 23, 2024 meeting regarding this permit, Doyle

repeatedly mocked Ankney for his speech impediment. (Id. ¶ 73.) Doyle issued

the fire bay permit and directed Ankney to post it in the window, however, in the

permit, Doyle “identified the property as ‘no address on file’ and issued it to

‘Owner Lincoln Highway Thomasville PA’[,]” which is not where the property is

located. (Id. ¶¶ 74–76.) Doyle refused to correct this error and instead mocked

Ankney for his speech impediment. (Id. ¶ 77.)

Finally, community members and Ankney have complained of noise from

two businesses also located on Hillside Drive. However, Paradise Township has

directed noise violation letters to Ankney instead of the other businesses. (Id. ¶¶

78, 79.)

C. Claims in the Amended Complaint

Plaintiffs filed the amended complaint on October 7, 2024, raising six

constitutional violations under § 1983 as well as one ADA violation. (Id. ¶¶ 80–

124.) Count I raises procedural and substantive due process violations against all

defendants regarding the tow list. (Id. ¶¶ 80–87.) Count II raises Monell claims

against Paradise Township, Jackson Township and Northern York Regional Police

Department for the conduct complained of in Count I. (Id. ¶¶ 88–94.) In their

briefs in opposition to the instant motions, Plaintiffs ask the court to dismiss counts

I and II. The court specifically notes that Plaintiffs request dismissal of these

counts despite the court’s order requiring good faith efforts to meet and confer

regarding curing deficiencies in the amended complaint by amendment and

moving Defendants’ certifications that the parties had met, and Plaintiffs were

unwilling to amend their complaint. (See Doc. 4; Doc. 15, ¶ 1; Doc. 17, ¶ 15.)

Despite Plaintiffs failure to comply with court orders, the court will grant the

motion to dismiss counts I and II with prejudice.3

Plaintiffs also allege an equal protection clause violation regarding the tow

list against all defendants in count III. (Doc. 8, ¶¶ 95–100.) Plaintiffs allege that

they were treated differently than other similarly situated towing companies, such

3 In a separate order resolving the motions, Plaintiffs shall be required to show cause why

sanctions should not be imposed for failure to comply with the court’s order.

as Lamar Express Towing, there was no rational basis for this different treatment,

and the differential treatment was due to Doyle’s and Dunham’s “disdain” for

Ankney’s speech impediment. (Id. ¶¶ 97–99.) Count IV is a Monell claim for the

same conduct underlying count III against Defendants Paradise Township, Jackson

Township, and Northern York Regional Police Department. (Id. ¶¶ 101–07.)

Count V is a violation of the Americans with Disabilities Act against all

defendants. (Id. ¶¶ 108–112.) Again, in their briefs in opposition, Plaintiffs

request the court dismiss the ADA claim as to Doyle, Neidigh, and Dunham in

their individual and official capacities. As above, the court will dismiss the ADA

claim as to these defendants with prejudice. The remaining ADA claims allege

that Paradise Township, Jackson Township, and Northern York Regional Police

Department prohibited Ankney’s inclusion on the tow list due to Ankney’s speech

impediment. (Id. ¶ 111.)

Finally, Count VI raises an equal protection clause challenge against

Paradise Township and Doyle regarding the signage issue. (Id. ¶¶ 113–18.) Count

VI alleges that Paradise Township and Doyle treated Ankney’s Towing differently

from other similarly situated businesses, this differential treatment was without any

rational basis, and was due to Doyle’s “disdain” for Ankney’s speech impediment.

(Id. ¶¶ 115–18.) Count VII alleges a Monell claim for the same conduct against

Paradise Township. (Id. ¶¶ 119–24.)

In summary, the following claims remain pending and are before the court

for review: counts III and IV, equal protection clause violation regarding the tow

list against all defendants and companion Monell claim; count V, ADA claim

against only the municipality defendants;4 and counts VI and VII, equal protection

clause violation regarding the signage against Paradise Township and Doyle and

companion Monell claim.

On October 21, 2024, Defendants Jackson Township and Bradley Dunham,

in his individual capacity and as Township Supervisor, filed a motion to dismiss

the amended complaint for failure to state a claim. (Doc. 15.)5 On the same day,

Defendants Northern York County Regional Police Department, Jackson

Township, Bradley Dunham in his capacity as Township Supervisor of Jackson

Township and as Fire Chief for Nashville Volunteer Fire Company,6 Paradise

Township, and Neal Doyle filed a motion to dismiss for failure to state a claim.

(Doc. 17.) Plaintiffs filed briefs in opposition and memoranda of law on

4 That is, Paradise Township, Jackson Township, and Northern York Regional Police

Department.

5 Document 15 and the accompanying brief raise only an argument regarding whether Defendant

Dunham was acting as a state actor on behalf of Jackson Township during the November 13,

2023 incident. (Doc. 16, p. 4.) Because all defendants have moved to dismiss in some capacity,

the court will address all motions at the same time and discuss Defendant Dunham’s argument

regarding whether he was a state actor in its larger discussion of all of the motions. For ease of

reference, the court will refer collectively to all defendants as “Defendants.”

6 The opening paragraph of Doc. 17 appears to list Nashville Fire Company as a defendant.

(Doc. 17, p. 1.) As previously noted, Nashville Fire Company is not a defendant to this action

and is pleaded as a “department” of Jackson Township. (Doc. 8, ¶ 7.)

November 4, 2024. (Docs. 19, 20, 21, 22.) Defendant Neidigh was not served

until December 30, 2024. (Doc. 23.) Defendant Neidigh then filed a motion to

dismiss and brief in support on January 21, 2025, which joined the arguments

raised by Defendants in their October motion, Doc. 16. (Docs. 25, 26.) Plaintiffs

then filed a brief in opposition on February 24, 2024. (Doc. 27.) No reply briefs

were filed. Accordingly, these motions are ripe and ready for disposition.

JURISDICTION AND VENUE

The court has subject matter jurisdiction pursuant to 28 U.S.C. §§ 1331 and

1343 because Plaintiffs allege violations of constitutional rights under 42 U.S.C.

§ 1983. Venue is appropriate pursuant to 28 U.S.C. § 1391 because all parties are

located within the Middle District of Pennsylvania and all acts or omissions

alleged in the amended complaint occurred within the Middle District.

STANDARD OF REVIEW

In order “[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.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp.

v. Twombly, 550 U.S. 544, 570 (2007)). A claim is plausible on its face “when the

plaintiff pleads factual content that allows the court to draw the reasonable

inference that the defendant is liable for the misconduct alleged.” Id. (quoting

Twombly, 550 U.S. at 556). “Conclusory allegations of liability are insufficient” to

survive a motion to dismiss. Garrett v. Wexford Health, 938 F.3d 69, 92 (3d Cir.

2019) (quoting Iqbal, 556 U.S. at 678–79). To determine whether a complaint

survives a motion to dismiss, a court identifies “the elements a plaintiff must plead

to state a claim for relief,” disregards the allegations “that are no more than

conclusions and thus not entitled to the assumption of truth,” and determines

whether the remaining factual allegations “plausibly give rise to an entitlement to

relief.” Bistrian v. Levi, 696 F.3d 352, 365 (3d Cir. 2012) abrogated on other

grounds as recognized in Mack v. Yost, 968 F.3d 311, 319 n. 7 (3rd Cir. 2020).

DISCUSSION7

The court will begin with the equal protection violation claims regarding the

tow list and companion Monell claim, then turn to Dunham’s motion in his

individual capacity regarding his participation in those violations. The court will

then examine the ADA claim, and finally turn to the equal protection violation

claims regarding signage on Plaintiffs’ property and the companion Monell claim.

A. Count II–Equal Protection Claim Regarding the Tow List

Defendants argue that Plaintiffs failed to sufficiently allege a “class of one”

equal protection claim because Plaintiffs failed to plead facts showing that Lamar

Express Towing is similar to Ankney Towing in all relevant aspects. (Doc. 18, pp.

7 The court has omitted arguments that are now moot because Plaintiffs conceded dismissal of

counts I, II, and V against the individual defendants.

11) (citing Startzell v. City of Phila., 533 F.3d 183, 203 (3d Cir. 2008)).8

Defendants additionally argue that Ankney’s assertion that removal from the tow

list was due to Ankney’s speech impediment is not supported by facts. (Id.)

Addressing arguments raised in Defendants’ motion but not in their brief,

Plaintiffs first respond that an equal protection claim does not require a

constitutionally protected property interest. (Doc. 20, p. 6.) Plaintiffs also argue

they have sufficiently pleaded a similarly situated business, and that they do not

need to plead Defendants’ motivation for treating Ankney different than others, but

rather, Plaintiffs need only show the difference in treatment was not rational. (Id.

at 7, 8.) Finally, again addressing an argument contained only in Defendants’

motion, Plaintiff argues that Engquist v. Oregon Dep’t of Agr., 553 U.S. 591, 603–

05 (2008) is not applicable because this is not a public employment context and

otherwise inapposite. (Id. at 8, 9.)

A “class of one” equal protection claim requires that a plaintiff allege “(1)

the defendant treated him differently from others similarly situated, (2) the

defendant did so intentionally, and (3) there was no rational basis for the difference

in treatment.” Hill v. Borough of Kutztown, 455 F.3d 225, 239 (3d Cir. 2006).

“While persons are similarly situated under the Equal Protection Clause when they

8 For ease of reference, the court uses the page number in the CM/ECF header.

are alike in all relevant aspects, the law in the Third Circuit does not require the

plaintiff to show that the comparators are identical in all relevant respects but only

that they are alike.” Borrell v. Bloomsburg Univ., 955 F. Supp. 2d 390, 405 (M.D.

Pa. 2013) (cleaned up). Further, a plaintiff only needs to allege facts that plausibly

show the existence of similarly situated parties. Id. Whether individuals are

similarly situated is a fact intensive inquiry that is “inappropriate at the motion-to-

dismiss stage.” Id. (quotations omitted).

While Plaintiffs have certainly not alleged that Lamar Express Towing and

Ankney Towing are identical in every aspect, they are not required to do so.

Rather, Plaintiffs are required to allege they are alike in all relevant aspects, and

Plaintiffs have met this burden. Plaintiffs alleged that “Mr. Lamar of Lamar

Express Towing received approximately ten (10) formal violation notices before

Lamar Express Towing was removed [form the tow list].” (Doc. 8, ¶ 57.)

Although not detailed, it can reasonably be inferred that Lamar Towing is a towing

company that was on the tow list of the York County 911 Dispatch, the same as

Ankney Towing. Thus, Lamar Express Towing and Ankney Towing are similar in

the respect that they were both removed from the tow list, which is the conduct at

issue. There are allegations that Lamar Express was treated differently, having

received at least ten formal citations before being removed, whereas Ankney

Towing did not receive any formal citations but was nonetheless removed from the

list. Whether there are further relevant similarities or dissimilarities between these

two entities is better explored through discovery. For the purpose of a motion to

dismiss, Plaintiffs have sufficiently alleged that they were treated differently than a

similarly situated comparator.

Defendants also argue that Plaintiffs have failed to plead facts showing that

Defendants’ actions were irrational because Plaintiffs have failed to plead anything

beyond conclusory statements that Defendants were motivated by disdain for Mr.

Ankney’s speech impediment. (Doc. 18, p. 11.) “To succeed on a class-of-one

claim, a plaintiff must show that the differential treatment was ‘irrational and

wholly arbitrary.’” Tucker Industrial Liquid Coatings, Inc. v. Borough of East

Berlin, 85 F. Supp. 3d 8903, 311 (M.D. Pa. 2015) (quoting Eichenlaub v. Twp. of

Indiana, 385 F.3d 274, 286 (3d Cir. 2004)). This is a high burden, and a plaintiff

fails to meet that burden when “there is any reasonably conceivable state of facts

that could provide a rational basis for the classification.” Heller v. Doe, 508 U.S.

312, 320 (1993). Under rational basis review, a governmental classification

“cannot run afoul of the Equal Protection Clause if there is a rational relationship

between the disparity of treatment and some legitimate governmental purpose.” Id.

To strike the balance between the pleading standard under Rule 12(b)(6) and the

heightened standard of proving a governmental classification is irrational, the court

“accept[s] as true all of the complaint’s allegations, including all reasonable

inferences that follow, and assesses whether they are sufficient to overcome the

presumption of rationality that applies to the ordinance.”9 Rucci v. Cranberry

Twp., 130 Fed. App’x 572, 575 (3d Cir. 2005).

Plaintiffs have alleged that their removal from the tow list was arbitrary and

without a rational basis, and that the treatment they received is different than the

treatment that other similar tow truck companies on the tow list received. (Doc. 8,

¶¶ 52, 57, 59, 98.) Moreover, Plaintiffs pleaded that Northern York Regional

Police had standards for the tow list, and Plaintiffs fulfilled those standards, yet

they were removed from the tow list. (Id. ¶¶ 20–22.) Moreover, the complaint

itself does not present a rational basis for Plaintiffs’ removal from the tow list and

Defendants do not present one. At this stage, considering the pleading standard,

this is sufficient to state a claim for a class-of-one theory of an equal protection

violation.

Further, Plaintiffs are not required to plead facts showing Defendants were

motivated by animus for Ankney’s speech impediment in order to plead that

Defendants acted intentionally because “intentional discrimination’ need not be

motivated by ‘ill will, enmity, or hostility’ to contravene the Equal Protection

9 While Rucci applied rational basis review in the context of analyzing an ordinance, courts have

applied the same standard in analyzing governmental classifications in “class-of-one” cases.

Archer v. York City Sch. Dist., 13-CV-2826, 2014 WL 12884086 (M.D. Pa. Feb. 27, 2014).

Clause.” Hassan v. New York, 804 F.3d 277, 298 (3d Cir. 2015) (citation omitted).

Accordingly, the motion to dismiss will be denied on this basis.10

B. Count III–Monell Claim Regarding the Tow List

Defendants argue the accompanying Monell claim regarding the tow list

fails because it does not allege a policy or custom of depriving individuals’ equal

protection rights or a policymaker who caused the violation. (Doc. 18, p. 13.)

Defendants also add that the Monell claim fails to state a claim because there is no

underlying constitutional violation. (Id.) Finally, Defendants argue that Ankney

cannot establish deliberate indifference because the amended complaint fails to

allege an individual with final policymaking authority was responsible for a policy

and it also does not allege a pattern of violations. (Id. at 14.)

Plaintiffs argue that “[a]s Plaintiffs have sufficiently pled a claim for

violations of the Equal Protection Clause, there is a reasonable expectation that

10 To the extent Defendants rely on Engquist v. Oregon Dep’t of Agr., 553 U.S. 591 (2008), the

court finds that Engquist is inapposite. In Engquist, the Supreme Court held that a “‘class-of-

one’ theory of equal protection has no place in the public employment context.” Id. at 594. A

class-of-one theory is not available in the public employment context because employment

decisions “by their nature involve discretionary decisionmaking based on a vast array of

subjective, individualized assessments[,]” and “allowing a challenge based on the arbitrary

singling out of a particular person would undermine the very discretion that such state officials

are entrusted to exercise[]” in the employment context. Id. at 603. This case is not a public

employment case. This case is more similar to Village of Willowbrook v. Olech, 528 U.S. 562

(2000) in which the court first recognized a “class-of-one” theory when a municipality required

plaintiff to obtain a thirty-three-foot easement, but all other neighbors only needed a fifteen-foot

easement. Id. at 563. The court addresses this case because Plaintiffs address it in their brief in

opposition. (Doc. 20, p. 8.) Defendants cited to Engquist in their motion to dismiss, but did not

develop any argument relating to Engquist in their brief in support. (See Doc. 17, ¶ 7.)

discovery will reveal evidence of the necessary facts to demonstrate a Monell

claim at trial.” (Doc. 20, p. 10.)

A municipality can be liable for constitutional violations committed by its

employees only when “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.” Monell v. Dep’t of Soc. Servs.

of City of New York, 436 U.S. 658, 690 (1978). Accordingly, a plaintiff must

“plead that the complained-of injury was caused directly by a local 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.’” Schlaybach v. Berks Heim

Nursing & Rehab, 434 F. Supp. 3d. 342, 350–51 (E.D. Pa. 2020) (quoting Harris v.

City of Phila., 171 F. Supp. 3d 395, 400 (E.D. Pa. 2016)).

A policy or custom can be proven in multiple ways. First, a plaintiff may

point to “a formal policy officially promulgated or endorsed by the

municipality . . . .” Id. at 351. The policy must be “an official proclamation,

policy or edict” made by “a decisionmaker possessing final authority to establish

municipal policy with respect to the action[.]” Estate of Roman v. City of Newark,

914 F.3d 789, 798 (3d. Cir. 2019). Second, absent a formal policy, the plaintiff

may allege a municipality’s custom, which is “a practice so consistent and

widespread that, although not expressly authorized, constitutes a custom or usage

of which a policymaker must have been aware[,]” caused the violation of their

rights. Id. (see also Bielevicz v. Dubinon, 915 F.2d 845, 850 (3d. Cir. 1990)). The

custom must be “so well-settled and permanent as virtually to constitute law.”

Watson v. Abington Twp., 478 F.3d 144, 156 (3d Cir. 2007). Third, a “specific

injury-causing action[] taken by a government official who is responsible for

establishing municipal polices” may establish a municipal policy or custom.

Schlaybach, 434 F. Supp. 3d at 351. In this scenario, “the conclusion that the

action taken or directed by the municipality or its authorized decisionmaker itself

violates federal law will also determine that the municipal action was the moving

force behind the injury of which the plaintiff complains.” Board of Cnty. Comm’rs

of Bryan Cnty., Okla. v. Brown, 520 U.S. 397, 405 (1997).

Finally, “a widespread failure by policymakers to provide adequate training

or supervision to subordinates” which amounts to deliberate indifference towards

the rights of citizens can also support municipal liability. Id. (citing City of

Canton v. Harris, 489 U.S. 378, 388 (1989)); see also Natale v. Camden Cnty.

Corr. Facility, 318 F.3d 575, 584 (3d. Cir. 2003). In any of the above scenarios, “a

plaintiff must show that an official who has the power to make policy is

responsible for either the affirmative proclamation of policy or acquiescence in a

well-settled custom.” Bielevicz, 915 F.2d at 850.

Here, Plaintiffs have failed to allege a Monell claim because they have only

pleaded conclusory statements regarding the police department’s or townships’

policies. Plaintiffs have not specified any decisionmaker or official who

promulgated a specific policy, nor have they specified a policy or custom that is so

widespread that it is effectively a policy. At most, Plaintiffs have alleged that

purported policymakers, such as Neidigh, Dunham, and Doyle, participated in the

purported constitutional violation. (Doc. 8, ¶¶ 104, 105.) However, Plaintiffs have

not sufficiently pleaded facts to show that these individuals are final policymakers

for the municipal entities. Plaintiffs allege that Neidigh, Doyle, and Dunham

participated in the constitutional violations and are “high-ranking within each of

their organizations[.]” (Doc. 8, ¶ 104.) This is insufficient to allege that they are

final policymakers for their respective entities because a policymaker is not

necessarily a “high ranking” official, but rather, a policymaker must be responsible

for making the policy of the entity. Schlaybach, 434 F. Supp. 3d at 351.

Plaintiffs allege that Dunham was the final policymaker for Jackson

Township because he was the township supervisor. (Id. at ¶ 105.) However, as

argued by Defendants, at the time of Ankney Towing’s removal from the tow list

in November 2023, Dunham had not yet taken on his role of Township Supervisor

and was only Township Supervisor-elect. (Id. at ¶¶ 9, 46.) Thus, there are no

allegations that any individual defendant is responsible for establishing the policies

of their respective municipalities. Therefore, Plaintiffs provide only conclusory

recitation of the elements of a Monell claim. Accordingly, the motion to dismiss

will be granted and Count VI will be dismissed without prejudice because

amendment is not futile. Fletcher-Harlee Corp. v. Pote Concrete Contractors,

Inc., 482 F.3d 247, 252 (3d Cir. 2007).

C. Whether Dunham was Acting Under Color of State Law

Defendants Dunham and Jackson Township argue that the amended

complaint fails to allege that Defendant Dunham, individually or as Township

Supervisor of Jackson Township, was a state actor for § 1983 purposes because

Dunham had not yet taken office as Jackson Township supervisor during the

events at issue. (Doc. 16, pp. 7–9.) Plaintiffs respond that they have alleged

sufficient facts showing Dunham’s close nexus to removing Ankney Towing from

the tow list through the temporal proximity between Dunham threatening to

remove Ankney Towing from the tow list and the removal, Paradise Township

initiating a lawsuit the day after the interaction with Dunham, as well as York

County 911 Dispatch informing Ankney Towing that their removal from the list

was because Jackson and Paradise Townships “no longer wants you on the list.”

(Doc. 22, p. 6.)

As explained by the Third Circuit, the Supreme Court has developed three

different tests to assess whether a private person’s or entity’s action can be

attributable to the state. Kach v. Hose, 589 F.3d 626, 646 (3d Cir. 2009). First,

there is the “public function” test, which asks, “whether the private entity has

exercised powers that are traditionally the exclusive prerogative of the state[.]” Id.

Second, there is the “close nexus” test, which asks “whether the private party has

acted with the help of or in concert with state officials[.]” Id. Third and finally,

there is the “symbiotic relationship” test, which asks whether “the [s]tate has so far

insinuated itself into a position of interdependence with the acting party that it

must be recognized as a joint participant in the challenged activity.” Id. The

parties only make arguments regarding the close nexus test.

Dunham in his official capacity as Township Supervisor will be dismissed

without prejudice because it is alleged in the amended complaint that Dunham had

not yet taken that position as of the November 2023 accident response incident

giving rise to the claims at issue. (Doc. 8, ¶ 46.) However, the claim against

Dunham in his official capacity as fire chief will not be dismissed because

Defendants do not contest the claim against Dunham in his capacity as fire chief.

The claim against Dunham in his individual capacity will also not be dismissed

because Plaintiffs have sufficiently alleged Dunham and Jackson Township’s

participation in the removal from the tow list. Although not specific, there is a

suggestion of temporal proximity between Dunham’s disagreement with Ankney

Towing in his capacity as fire chief of a department of Jackson Township and

Ankney Towing being informed they were removed from the list at the request of

Jackson and Paradise Townships. (Id. ¶¶ 7, 8, 54–56.) This is sufficient to allow

the claim to proceed to discovery and whether it ultimately can be proven will be

tested at a later time. Accordingly, the motion to dismiss is granted in part and

denied in part.

D. Count V–ADA Claim

Defendants argue that Ankney has failed to plead facts showing that his

speech impediment substantially limited a major life activity, as required for an

ADA claim. (Doc. 18, p. 16.) Further, Defendants argue that Ankney has failed to

allege facts sufficient to show that removing Ankney from the tow list was due to

Ankney’s speech impediment. (Id.)

Plaintiffs respond that the court “can infer from the facts pled that Mr.

Ankney’s speech impediment substantially limits one of life’s most important life

activities, that ability to communicate verbally with other human beings.” (Doc.

20, p. 11.) Further, Plaintiffs argue that “even if discovery fails to demonstrate a

sufficient limitation, discovery may nonetheless reveal that Defendants ‘regarded’

Mr. Ankney as having such an impairment.” (Id.) Finally, Plaintiffs construe

Defendants’ argument that the allegations regarding why Ankney was removed

from the tow list are conclusory as an argument that “it is not plausible for

individuals to discriminate against an individual based upon a speech impediment.”

(Id.) Thus, Plaintiffs argue that “it is entirely plausible that individuals will abuse

their power and influence to discriminate against others on the most meaningless

of bases–our Country’s history is replete with such examples.” (Id.) Plaintiffs

point to no specific examples.

To state a claim under Title II of the ADA, a plaintiff must plead that “(1) he

is a qualified individual; (2) with a disability; (3) who was excluded from

participation in or denied the benefits of the services, programs, or activities of a

public entity, or was subjected to discrimination by any such entity; (4) by reason

of his disability.” Haberle v. Troxel, 885 F.3d 170, 178 (3d Cir. 2018) (quoting

Bowers v. NCAA, 475 F.3d 524, 553 n.32 (3d Cir. 2007)). The term “disability” is

defined as “(A) a physical or mental impairment that substantially limits one or

more major life activities of such individual; (B) a record of such an impairment;

or (C) being regarded as having such an impairment (as described in paragraph

(3)). 42 U.S.C. § 12102(1). A “major life activity” includes speaking. Id. at

§ 12102(2). Further, the ADA specifically provides that “[t]he definition of

disability in this chapter shall be construed in favor of broad coverage of

individuals under this chapter, to the maximum extent permitted by the terms of

this chapter.” Id. § 12102(4)(A).

Here, Ankney has alleged that his lifelong speech impediment causes

Ankney to have difficulty speaking clearly. (Doc. 8, ¶ 61.) For pleading purposes,

this is sufficient to allege a disability. The extent of Ankney’s speaking difficulties

is better explored through discovery.

Further, Ankney has sufficiently alleged that the Defendants regarded him as

having an impairment. The definitions section of the ADA provides:

[a]n individual meets the requirement of “being regarded as having

such an impairment” if the individual establishes that he or she has been

subjected to an action prohibited under this chapter because of an actual

or perceived physical or mental impairment whether or not the

impairment limits or is perceived to limit a major life activity.

42 U.S.C. § 12102(3)(A). However, 42 U.S.C. § 12102(1)(C) “shall not apply to

impairments that are transitory and minor. A transitory impairment is an

impairment with an actual or expected duration of 6 months or less.” Id. §

12102)(3)(B). Plaintiffs have alleged that members of Nashville Volunteer Fire

company mocked Ankney and Dunham witnessed such mocking. (Doc. 8, ¶¶ 62,

63.) It is alleged that Nashville Volunteer Fire Company is a “department” of

Jackson Township. (Id. at ¶ 7.) Further, Plaintiffs have alleged that Doyle mocked

Ankney for his speech impediment. (Id. at ¶ 77.) It is also alleged that Ankney

Towing was denied participation in the tow list “program” due to Ankney’s speech

impediment. (Id. at ¶ 99, 111.) Additionally, the impairment is not transitory or

minor as Plaintiffs have alleged that Ankney has suffered from a speech

impediment his whole life. (Id. at ¶ 60.) These allegations show that Defendants

commented on Ankney’s speech impediment and allegedly took actions against

him because of this impairment. Taken together, these allegations are sufficient to

allege Jackson Township and Paradise Township subjected Ankney to a prohibited

action because of a perceived impairment, regardless of whether that impairment

actually substantially limited Ankney’s major life activity. Further, the court

agrees with Plaintiffs that the case cited by Defendants is inapposite as it deals

with whether a Plaintiff had produced sufficient evidence to show that

complications related to his epilepsy substantially limited a major life activity at

the summary judgment stage. Sterling v. McKesson Automation, Inc., 2006 WL

2792203, at * 5 (W.D. Pa. Sept. 26, 2006). A detailed examination of the extent of

Ankney’s speech impairment is more appropriate once the parties have conducted

discovery.

Finally, Defendants argue that Ankney’s allegations that he was removed

from the list because of discrimination against him are conclusory. (Doc. 18, p.

16.) While these specific allegations are conclusory, Plaintiffs have pleaded

sufficient facts to infer that the reason why Plaintiffs were removed from the tow

list was because of Ankney’s speech impediment, considering that Ankney Towing

was removed from the tow list even though it had satisfied the requirements set

forth by Lieutenant Neidigh to qualify as a towing company, never received a

citation as threatened by Dunham, and Jackson Township employees and Paradise

Township officials had mocked Ankney’s speech impediment. Accordingly, the

motion to dismiss regarding the ADA claim is denied.11

E. Counts VI and VII–Equal Protection Claim Regarding Signage

Defendants again argue that Plaintiffs have failed to identify a similarly

situated comparator for the equal protection claims regarding the signage. (Doc.

18, p. 17.) Further, Defendants argue that Doyle’s enforcement of zoning

ordinances against Plaintiffs was not arbitrary or irrational. (Id.) Regarding the

Monell claims, Defendants argue that Plaintiffs have failed to plead any policy or

custom of violating equal protection rights relating to zoning enforcement. (Id.)

Defendants also note that Plaintiffs have failed to plead any policy makers from

Paradise Township who violated their rights. (Id. at 17, 18.)

Plaintiffs respond that “[t]here are numerous similarly situated property

owners in Paradise Township. Glaringly, the unequal treatment was so obvious

that Paradise Township & Mr. Doyle withdrew the court action only after Mr.

Ankney retained counsel and then only two weeks prior to the adjudication.”

(Doc. 20, p. 11.) Plaintiffs argue that the court “can more than reasonably infer

that there exists a (or dozens) property owner with one sign on the owner’s

property in Paradise Township.” (Id. at 12.) Plaintiffs also argue that the court can

11 As noted above, the motion is granted regarding Neidigh, Dunham, and Doyle in their

individual capacities, as conceded by Plaintiffs.

infer that “there was not an ordinance violation and Mr. Doyle was instead abusing

his power.” (Id.) Plaintiffs again argue that because they have stated a claim for

an equal protection claim, their Monell claim should also proceed. (Id.)

This claim also alleges a class-of-one equal protection claim. Hill, 455 F.3d

at 239. Here, however, Plaintiffs have not identified similarly situated properties

that received different treatment. Plaintiffs ask the court to speculate that there

must be other properties similarly situated that are allowed to have more than one

sign on the property. This is not an inference the court can reasonably draw from

the amended complaint. Accordingly, the motion to dismiss will be granted on this

claim and count VI will be dismissed without prejudice.

Because Plaintiffs have failed to state a constitutional violation in count VI,

the court will grant the motion to dismiss regarding count VII and dismiss the

Monell claim without prejudice. (Knellinger v. York Street Prop. Dev., LP, 57 F.

Supp. 3d 462, 471 (E.D. Pa. 2014) (“Importantly, without an underlying

constitutional violation, there can be no Monell claim.”) Accordingly, Counts VI

and VII are dismissed without prejudice and with leave to amend because

amendment is not futile at this time. Fletcher-Harlee Corp., 482 F.3d at 252.

CONCLUSION

The motions to dismiss will be granted in part and denied in part. An Order

follows.

s/Jennifer P. Wilson

JENNIFER P. WILSON

United States District Judge

Middle District of Pennsylvania

Dated: April 21, 2025