Nagle v. Pottsville Area School District

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF PENNSYLVANIA

KIRA NAGLE, et al.,

Plaintiffs, CIVIL ACTION NO. 3:24-CV-1808

v.

(MEHALCHICK, J.)

THE POTTSVILLE AREA SCHOOL

DISTRCT, et al.,

Defendants.

MEMORANDUM

Presently before the Court is a motion to dismiss for failure to state a claim filed by

Defendants Pottsville Area School District (“PASD”), PASD Superintendent Sarah Yoder

(“PASD Superintendent”), Kayla Peters (“Defendant Peters”), and Cynthia Stasulli

(“Defendant Stasulli”) (collectively, “Defendants”). (Doc. 10). On November 16, 2022, a

collection of Gillingham Charter School (“Gillingham”) students over the age of 18 and under

the age of 18 through their parents and guardians1 (“Student Plaintiffs”), Gillingham English

teacher Deidra Herbert (“Plaintiff Herbert”), and Gillingham athletic director Leonard

Martin (“Plaintiff Martin”) (collectively, “Plaintiffs”) initiated this action by filing a

complaint pursuant to 28 U.S.C. § 1331. (Doc. 1). For the following reasons, Defendants’

motion to dismiss shall be GRANTED in part and DENIED in part. (Doc. 10).

I. BACKGROUND AND PROCEDURAL HISTORY

The following background is taken from the complaint and for the purposes of the

1 Plaintiffs clarified at oral argument that the parents and guardians listed in the

complaint are only named because they are the parents and guardians of plaintiffs under the

age of 18 at the time of filing, and that the parents and guardians themselves are not plaintiffs

bringing any claims against Defendants. (Doc. 21, at 33).

instant motion, taken as true. (Doc. 1). On or about June 4, 2024, Gillingham administrators

received a “save the date” invitation to the Schuylkill County Regional College Fair (“College

Fair”), an event hosted by PASD at Martz Hall, a public-school gymnasium. (Doc. 1, ¶¶ 3-4,

71-72). The invitation stated: “The College Fair at Martz Hall for the 24/25 School year is

Thursday, October 3, 2024. Mark your calendar. Hope to see you there. Sign-ups for Districts

will be sent out at the beginning of the new school year.” (Doc. 1, ¶¶ 71-72). Along with

Gillingham, the invitation was also sent to two private, Catholic schools. (Doc. 1, ¶ 73).

Around August 2, 2024, Gillingham and the Catholic schools received a follow up

email from Defendant Stasulli informing them of the time and location of the College Fair

and providing the schools with a registration form for the College Fair (“Registration Form”).

(Doc. 1, ¶¶ 76-78). Around August 26, 2024, “Gillingham submitted the completed

Registration Form to PASD, thereby notifying the PASD Defendants that Gillingham

intended to ‘bring’ approximately ‘27’ students to attend the College Fair”. (Doc. 1, ¶ 80).

On or about September 23, 2024, Defendant Stasulli notified Gillingham that its

invitation to the College Fair and the follow up emails were sent by mistake, and therefore its

students could not attend. (Doc. 1, ¶ 81). Gillingham asked PASD to reconsider, at which

point PASD Superintendent reiterated that the Plaintiffs were not welcome at the event. (Doc.

1, ¶¶ 85-86). Plaintiffs attended the College Fair anyway. (Doc. 1, ¶ 87).

Upon their arrival, Defendant Stasulli asked the Plaintiffs to leave. (Doc. 1, ¶¶ 87-91).

Citing PASD’s “history of hostility and bias towards Gillingham and its students/teachers,”

Plaintiff Herbert, a Gillingham teacher, read a statement the Student Plaintiffs had prepared

in which they declared their belief that they had a right to attend the College Fair. (Doc. 1, ¶

92). After Plaintiffs read the statement, Defendants reacted by physically blocking Plaintiffs

from entering the fair and shoving them away from the event. (Doc. 1, ¶¶ 93-102). Plaintiffs

nonetheless attempted to film the interaction and physically enter the College Fair. (Doc. 1,

¶¶ 93-102).

In response to Plaintiffs’ attempts to enter the College Fair, Defendants instructed the

other attendees of the College Fair to leave the gym floor and sit on the upper-lobby bleachers.

(Doc. 1, ¶¶ 103-106). This included the college admissions representatives. (Doc. 1, ¶¶ 103-

106). Around this time, Defendants called the police who arrived approximately twenty

minutes later. (Doc. 1, ¶108). By the time the police arrived, PASD Superintendent and

Plaintiff Herbert proposed an agreement where Plaintiffs spend thirty minutes in the College

Fair, however without their phones. (Doc. 1, ¶¶108-109). Student Plaintiffs refused to turn

over their phones to Defendants “because such a condition was not imposed on any other

attendee at the College Fair.” (Doc. 1, ¶ 110). The parties compromised, and Plaintiffs were

permitted to spend thirty minutes at the College Fair with the restriction that they could have

their phones, but only use their cameras to take photos of college admissions materials. (Doc.

1, ¶ 110).

In the week following the College Fair, Plaintiffs “publicly voiced the humiliation and

oppressive conduct that they experienced at the College Fair.” (Doc. 1, ¶ 113). In response to

this, approximately one week after the College Fair, legal counsel for PASD sent Gillingham

a letter seeking prevent Plaintiffs from continuing to publicly discuss their encounters with

Defendants at the College Fair. (Doc. 1, ¶ 113). The letter also demanded “Gillingham

remove and delete from its website and Facebook account” all “public statements and

narratives” that mention or suggest “improper and unprofessional conduct on the part of Dr.

Yoder or any other Pottsville Area School District personnel.” (Doc. 1, ¶ 114).

On October 21, 2024, Plaintiffs filed their complaint asserting Nine Counts of

violations of state and federal law. (Doc. 1). The Nine Counts are as follows: Count I –

violations of Plaintiffs’ First Amendment free speech rights; Count II – violations of Plaintiffs’

First Amendment assembly rights; Count III – unconstitutional retaliation against Plaintiffs

for exercising their First Amendment rights; Count IV – violations of Plaintiffs’ Fourth

Amendment right to be free of unreasonable seizure; Count V – violations of Plaintiffs’ rights

under the Equal Protection Clause of the Fourteenth Amendment; Count VI – violations by

PASD Superintendent of Plaintiff Nagle, Ulrich, Martin, B.B., K.B., M.B., S.C.,C.H., S.K.,

J.K., S.M., and K.R.’s substantive due process right to be free from excessive force under the

Fourteenth Amendment; Count VII – violations of Plaintiffs’ Eighth Amendment right to be

free from cruel and unusual punishment; Count VIII – violations of 42 U.S.C. § 1985; Count

IX – violations of Plaintiffs’ rights under the Pennsylvania Constitution’s Equal Protection

Clause. (Doc. 1, at 29-48). As relief, Plaintiffs seek damages, declaratory relief, and injunctive

relief. (Doc. 1, ¶¶ 116-182)

On December 23, 2024, Defendants filed a motion to dismiss, and on January 23,

2025, they filed a brief in support of their motion. (Doc. 10; Doc. 11). On January 21, 2025,

Plaintiffs filed a brief in opposition to Defendants’ motion to dismiss. (Doc. 14). Defendants

filed a reply brief on February 4, 2025. (Doc. 15). On February 7, 2025, Plaintiffs filed a

motion for leave to file sur-reply brief in further opposition to Defendants’ motion to dismiss

the complaint. (Doc. 16). Defendants filed an opposition to Plaintiffs’ motion for leave to file

a sur-reply brief on February 21, 2025. (Doc. 17). On February 25, 2025, the Court denied

Plaintiffs’ motion for leave to file a sur-reply brief and scheduled oral arguments for March 21,

2025, on the motion to dismiss. (Doc. 19). On March 21, 2025, the Court held oral arguments.

(Doc. 21). Accordingly, the motion to dismiss has been fully briefed and is ripe for disposition.

(Doc. 10; Doc. 11; Doc. 14; Doc. 15; Doc. 21).

II. LEGAL STANDARDS

A. MOTION TO DISMISS STANDARD

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

that 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 that 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)). Nor need a court assume that a

plaintiff can prove facts that the plaintiff has not alleged. Associated Gen. Contractors of Cal. v.

Cal. State 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.

B. 42 U.S.C. § 1983

Section 1983 is the vehicle by which private citizens may seek redress for violations of

federal constitutional rights committed by state officials. See 42 U.S.C. § 1983. The statute

states, 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 is not a source of substantive rights,” but is merely a means through

which “to vindicate violations of federal law committed by state actors.” See Pappas v. City of

Lebanon, 331 F. Supp. 2d 311, 315 (M.D. Pa. 2004) (quoting Gonzaga Univ. v. Doe, 536 U.S.

273, 284-85 (2002)). To state a cause of action under Section 1983, a plaintiff must allege that:

(1) the conduct complained of was committed by persons acting under color of state law; and

(2) the conduct violated a right, privilege, or immunity secured by the Constitution or laws of

the United States. See Harvey v. Plains Twp. Police Dep’t, 421 F.3d 185, 189 (3d Cir. 2005)

(quoting West v. Atkins, 487 U.S. 42, 48 (1988)).

III. DISCUSSION

Defendants move to dismiss all Nine Counts of the complaint. Defendants argue that

all Nine Counts should be dismissed because Plaintiffs lack standing. (Doc. 11, at 27-28).

Regarding Defendants’ First Amendment claims, Defendants assert that Count I (Plaintiffs’

First Amendment speech claim) and Count II (Plaintiffs’ First Amendment assembly claim)

should be dismissed because Martz Hall was a nonpublic forum during the College Fair and

Defendants had every right to exclude Plaintiffs from an invite-only event. (Doc. 11, at 12-

17). Relatedly, Defendants move to dismiss Count III (Plaintiffs’ First Amendment retaliation

claim) on the grounds that Plaintiffs were not exercising their First Amendment rights by

attending and recording the College Fair, and as such, Defendants could not have retaliated

against Plaintiffs for exercising their First Amendment Rights. Regarding Plaintiffs’ use of

force claims, Defendants move to dismiss Count IV (Plaintiffs’ Fourth Amendment Claim)

and Count VI (Plaintiffs substantive due process claim) on the basis that the force Defendants

asserted against Plaintiffs was insufficient to implicate either the Fourth Amendment or

substantive due process rights. (Doc. 11, at 18, 21-23). Defendants further posit that Count V

(Plaintiffs’ equal protection claim) should be dismissed because the complaint fails to allege

Plaintiffs were treated differently than a similarly situated group (Doc. 11, at 18-21).

Defendants move to dismiss Count VI (Plaintiffs’ Eighth Amendment claim) on the basis that

the Eighth Amendment does not apply to the facts alleged in the complaint. (Doc. 11, at 23).

Similarly, Defendants move to dismiss Count VIII (Plaintiffs’ civil conspiracy claim) on the

grounds that 42 U.S.C. § 1985 does not apply to the complaint. (Doc. 11, at 24-26). Finally,

Defendants ask the Court to dismiss Count IX (Plaintiffs’ state law claim) in the event that

the Court dismisses all federal claims. (Doc. 11, at 26-27). The Court will address each of

these grounds for dismissal in turn. For the reasons outlined below, the Court will GRANT

Defendants motion to dismiss Counts VI, VII, and VIII, and will DENY Defendants’ motion

to dismiss Counts I, II, III, IV, V, and IX. (Doc. 10).

A. STANDING

Defendants submit that Plaintiffs’ complaint should be dismissed because they have

failed to clearly allege an injury in fact. (Doc. 11, at 23-24). Defendants contend that Plaintiffs

have not clearly identified the harm or injuries they suffered, and further, that the Student

Plaintiffs did not suffer injury because they were allowed to attend the College Fair despite

not being invited, and that the Student Plaintiffs could have attended other college fairs. (Doc.

11, at 23-24; 27-28). Defendants also argue that the complaint fails to identify any injuries to

Plaintiff Herbert and Plaintiff Martin. (Doc. 11, at 27-28). Defendants further posit that the

Plaintiffs could not have suffered injuries because Gillingham received an invitation to the

College Fair, but the Plaintiffs themselves did not. (Doc. 15, at 8-9).

Plaintiffs respond that they have sufficiently alleged an injury in fact because 1) their

constitutional injuries are recognized types of injury, 2) the complaint alleges Plaintiffs were

humiliated and assaulted at the College Fair, and 3) other students were not restricted to only

thirty minutes at the College Fair. (Doc. 14, at 38-40). Plaintiffs further assert that the fact

that the Plaintiffs could have attended other college fairs is irrelevant to them being denied

access to the College Fair at issue. (Doc. 14, at 38-40). In response to Defendants’ standing

arguments related to Plaintiff Herbert and Plaintiff Martin, Plaintiffs clarify that these

individuals attended the College Fair as chaperones and as such, they were subject to the same

treatment and injury as the Student Plaintiffs. (Doc. 21, at 22).

“Article III of the Constitution limits the ‘judicial power’ of the United States to the

resolution of ‘cases’ and ‘controversies.’” Valley Forge Christian Coll. v. Americans United for

Separation of Church & State, Inc., 454 U.S. 464, 471 (1982). “As an incident to the elaboration

of this bedrock requirement, this Court has always required that a litigant have ‘standing’ to

challenge the action sought to be adjudicated in the lawsuit.” Valley Forge Christian Coll., 454

U.S. at 471. “The standing doctrine defines what is a ‘case’ or ‘controversy.’”

Long v. Se. Pennsylvania Transportation Auth., 903 F.3d 312, 320–21 (3d Cir. 2018). As

explained by the Third Circuit:

Article III standing requires (1) an injury in fact, (2) a causal connection

between the injury and the defendant's conduct, and (3) a likelihood that a

favorable decision will provide redress for the injury.” Injury in fact is ‘the

invasion of a concrete and particularized legally protected interest’ resulting in

harm ‘that is actual or imminent, not conjectural or hypothetical.’

Long, 903 F.3d at 321 (citations omitted).

“An injury is concrete when it is ‘real’ and ‘not abstract,’ with a ‘close relationship to harms

traditionally recognized as providing a basis for a lawsuit in American courts,’ including

‘harms specified by the Constitution itself.’” Rd.-Con, Inc. v. City of Philadelphia, 120 F.4th 346,

355 (3d Cir. 2024) (citations omitted).

When Plaintiffs allege injury to themselves and not others, the particularity

requirement is met. See Associated Builders & Contractors W. Pennsylvania v. Cmty. Coll. of

Allegheny Cnty., 81 F.4th 279, 288 (3d Cir. 2023) (“because Plaintiffs allege an injury to

themselves, not someone else, there is no particularity issue”); see also Rd.-Con, Inc., 120 F.4th

at 355 (stating the same). When a plaintiff adequately alleges that a defendant violated their

constitutional rights, that violation is a sufficient injury for purposes of standing. See Rd.-Con,

Inc. , 120 F.4th at 355, 358 (finding “Plaintiffs’ [First Amendment] injury is concrete because

it is a ‘harm to their legally protected First Amendment interest’ in voluntary association” and

further explaining “‘discriminatory classification is itself a penalty,’ and thus ‘qualifies as an

actual injury for standing purposes, where a citizen's right to equal treatment [under the Equal

Protection Clause] is at stake’” (citations omitted)); see also Associated Builders & Contractors W.

Pennsylvania, 81 F.4th at 288 (stating “a plaintiff has standing to bring a First Amendment

claim when he suffers injury to his legally protected First Amendment interest—e.g., when

the state forces him to speak, or associate”).

Defendants’ argument that the Student Plaintiffs were not injured because they were

allowed to attend the College Fair and could have attended other college fairs fails. The

complaint alleges that Defendants’ conduct and discriminatory actions violated the Student

Plaintiffs’ constitutional rights and that the Student Plaintiffs were only allowed to attend the

College Fair after being subject to discriminatory attempts to exclude them. (Doc. 1, ¶¶ 84,

95, 109-112, 117-137, 144-149). An injury is considered concrete when it is a “‘harm[]

specified by the Constitution itself.’” Rd.-Con, Inc., 120 F.4th at 355 (quoting TransUnion LLC

v. Ramirez, 594 U.S. 413, 425 (2021)). Further, the complaint alleges that the Student Plaintiffs

were allowed to attend the College Fair, but that they were only allowed to stay for thirty

minutes with limited access to their phones, a restriction not imposed on other attendees of

the College Fair. (Doc. 1, ¶¶ 145-148). Discriminatory treatment is itself a recognized injury

which can confer standing. See Rd.-Con, Inc., 120 F.4th at 358 (“a ‘discriminatory classification

is itself a penalty,’ and thus ‘qualifies as an actual injury for standing purposes’” (quoting

Hassan v. City of New York, 804 F.3d 277, 290 (3d Cir. 2015), as amended (Feb. 2, 2016)); see

also Burnett, 2014 WL 3109963, at *4 (E.D. Pa. July 8, 2014) (“an allegation of discriminatory

treatment confers standing”).

Defendants’ argument that the complaint fails to identify injuries to Plaintiff Herbert

and Plaintiff Martin also fails because the complaint repeatedly alleges constitutional injuries

to “Plaintiffs” as a whole, not just the Student Plaintiffs. (Doc. 1, ¶¶ 84, 95, 107, 109-112,

117-123, 125-131, 133-137, 139-143, 145-149). Plaintiffs clarified during oral argument that

Plaintiff Herbert and Plaintiff Martin attended the College Fair as chaperones and as such,

they were subject to the same mistreatment as the Student Plaintiffs. (Doc. 21, at 22).

Constitutional injuries, such as injuries based on violations of a plaintiff’s rights under the

First Amendment and Equal Protection Clause, are recognized injuries for standing purposes.

See Rd.-Con, Inc. v. City of Philadelphia, 120 F.4th at 355, 358. As such, the complaint

adequately alleges injuries suffered by all Plaintiffs.

Finally, Defendants’ argument that Gillingham is the only party with standing because

it is the only plaintiff to potentially have received an an invitation to the College Fair also

fails. (Doc. 15, at 8-9). While it is true that Gillingham received the invitation to attend the

College Fair, and not each individual Student Plaintiff and their parents/chaperones, the

complaint provides that the College Fair was an event intended for and attended by individual

students and teachers from schools who received the invitations. (Doc. 1, ¶¶ 5-6, 70, 80, 118,

126, 146). Therefore, despite any issue as to who directly receive the invitation, Plaintiffs have

alleged Defendants’ discriminatory conduct targeted at Plaintiffs before and during the

College Fair violated their constitutional rights. (Doc. 1, ¶¶ 80, 118-121, 126-129, 145-146).

This all considered, Defendants motion to dismiss on the basis of standing is DENIED. (Doc.

10).

B. FIRST AMENDMENT SPEECH AND ASSEMBLY CLAIMS (COUNTS I AND II)

Count I of the complaint alleges violations of Plaintiffs’ First Amendment right to

freedom of speech2 and Count II of the complaint alleges violations of Plaintiffs’ First

Amendment right to assembly. (Doc. 1, ¶¶ 116-131). Although these are separate Counts,

Defendants move to dismiss Count I and Count II on the same basis – that because Martz

Hall was a nonpublic forum, Defendants had every right to exclude Plaintiffs from the College

Fair. (Doc. 11, at 12-17). According to Defendants, Martz Hall was a nonpublic forum

because 1) school property is generally considered nonpublic; 2) the College Fair was an

invitation-only event to which Plaintiffs were not invited; and 3) the College Fair at Martz

Hall followed a longstanding, viewpoint neutral policy of only inviting “public school districts

affiliated with the IU” to the College Fair. (Doc. 11, at 14-15). Regarding this policy, the

2 The complaint alleges that Defendants violated Plaintiffs’ free speech rights by both

by restricting their attendance and ability to videorecord at the College Fair. (Doc. 1, ¶ 117).

Defendants only dispute Plaintiffs’ assertions that they had a right to videorecord the College

Fair by arguing “[the College Fair] was a nonpublic forum to which by their own admission,

Plaintiffs were not invited.” (Doc. 14, at 17). Because the Defendants do not raise the issue of

whether Plaintiffs had a First Amendment right to record at the College Fair outside of their

arguments that Plaintiffs did not have the right to attend the College Fair, the Court does not

need to address the extent to which Plaintiffs had a First Amendment right to video record

for purposes of the instant motion.

Defendants cite Pennsylvania law to aver that Gillingham as a charter school cannot be

considered a “school district.” (Doc. 11, at 15-16). They further argue that although

Gillingham is affiliated with Intermediate Unit 29 (“IU 29”), it is not a member the IU 29.

(Doc. 11, at 15-16). As such, the Defendants posit that Gillingham is not a “public school

district affiliated with the IU” and Plaintiffs were excluded pursuant to a viewpoint neutral

long-standing policy. (Doc. 11, at 14-16). As to Count II, Defendants assert that their actions

would not have violated Plaintiffs’ assembly rights even in a public forum. (Doc. 11, at 16-

17). In response, Plaintiffs contend that they sufficiently allege Martz Hall was a “limited” or

“designated” public forum for the purposes of the College Fair and as such, Defendants

unconstitutionally limited Plaintiffs’ speech and assembly at Martz Hall. (Doc. 14, at 15-19;

Doc. 21, at 16-17). Ultimately, and importantly for purposes of consideration of the instant

motion, Plaintiffs assert that Defendants engaged in unconstitutional viewpoint

discrimination regardless of forum. (Doc. 14, at 19-21) (emphasis added).

The First Amendment reads in relevant part: “Congress shall make no law. . .

abridging the freedom of speech. . . or the right of the people to peaceably to assemble.” U.S.

CONST. amend. I. The First Amendment limits the government’s ability to restrict individuals’

speech and assembly on government-controlled property, but the extent of those limits

“differ[s] depending on the character of the property at issue.” Perry Educ. Ass'n v. Perry Loc.

Educators' Ass'n, 460 U.S. 37, 44 (1983). Courts apply the same forum analysis to both speech

and assembly claims. See Gregoire v. Centennial Sch. Dist., 907 F.2d 1366, 1369 (3d Cir. 1990).

“When a First Amendment free speech challenge arises from a restriction on speech on

government owned or controlled property. . . the classification of the forum determines the

contours of the First Amendment rights that a court recognizes when reviewing the

challenged governmental action.” Galena v. Leone, 638 F.3d 186, 197 (3d Cir. 2011). Courts

recognize “three categories of public forums: (1) the traditional public forum; (2) the

designated public forum; and (3) the limited public forum [or nonpublic forum].”3 Galena, 638

F.3d at 197. Restrictions on speech in traditional public forums and designated public forums

are subject to strict scrutiny, such that “the government may enact reasonable time, place, and

manner restrictions on speech, but any restrictions on the content of speech must be tailored

narrowly to serve a compelling government interest.” Galena, 638 F.3d at 198; see also Porter

v. City of Philadelphia, 975 F.3d 374, 387 (3d Cir. 2020). “A nonpublic forum is entitled to

lesser First Amendment protection than the other two forums.” Porter, 975 F.3d at 387. In a

nonpublic forum, “[c]ontent-based restrictions on speech are valid so long as they are

reasonable in light of the purpose of the forum and viewpoint neutral.” Porter, 975 F.3d at

387.

3 Federal courts have expressed confusion over the concept of a “limited public

forum.” See Galena, 638 F.3d at 197 (stating “[t]here appears to be some inconsistency in

federal courts’ opinions, even those of the Supreme Court, as to whether a limited public

forum is a separate category or a subset of a designated public forum with a third category of

forums being “nonpublic forums”). The Third Circuit has at times taken the view that because

the Supreme Court has used the terms “limited public forum” and “nonpublic forum”

interchangeably, the two concepts should be treated the same. See Nat'l Ass'n for Advancement

of Colored People v. City of Philadelphia, 834 F.3d 435, 441 (3d Cir. 2016) (stating “[t]here has

been some confusion about whether there are any practical differences between nonpublic

and limited public forums. However, the Supreme Court recently ‘has used the term[s] ...

interchangeably ...[,] thus suggesting that these categories of forums are the same’”) (quoting

Galena, 638 F.3d at 197); see also Porter v. City of Philadelphia, 975 F.3d 374, 387 (3d Cir. 2020)

(stating “[t]he ‘nonpublic forum’ has also sometimes been referred to as the ‘limited public

forum,’ creating confusion about whether there is a difference between these two

classifications” and noting that “the Supreme Court recently has used the terms ‘limited

public forum’ and ‘nonpublic forum’ interchangeably, suggesting that, if there is a distinction,

these two categories are afforded the same treatment”). Because Plaintiffs clarified during oral

argument that they are asserting Martz Hall was a designated public forum during the College

Fair, the Court does not need to address whether a limited public forum is a subcategory of

nonpublic forum or designated public forum. (Doc. 21, at 16).

However, viewpoint discrimination is unconstitutional regardless of the kind of

property or forum at issue. See Ne. Pennsylvania Freethought Soc'y v. Cnty. of Lackawanna Transit

Sys., 938 F.3d 424, 432 (3d Cir. 2019); Pittsburgh League of Young Voters Educ. Fund v. Port Auth.

of Allegheny Cnty., 653 F.3d 290, 296 (3d Cir. 2011). A plaintiff adequately alleges viewpoint

discrimination if the complaint alleges a governmental entity discriminated against a group’s

“message and what its group and members believed.” Ne. Pennsylvania Freethought Soc'y v.

Cnty. of Lackawanna Transit Sys., 158 F. Supp. 3d 247, 256 (M.D. Pa. 2016); see also Liberty &

Prosperity 1776, Inc. v. Corzine, 720 F. Supp. 2d 622, 634 (D.N.J. 2010) (“at [the motion to

dismiss] stage, the Court need only find that viewpoint discrimination [] is a plausible

inference from the facts”).

Because this Court finds that the complaint sufficiently alleges viewpoint

discrimination, the Court will not determine what type of forum Martz Hall was at the time

of the College Fair at this juncture. See Pittsburgh League of Young Voters Educ. Fund, 653 F.3d

at 296 (declining to address forum type because plaintiff adequately established viewpoint

discrimination); see also Ne. Pennsylvania Freethought Soc'y, 158 F. Supp. 3d at 255 (declining

to determine forum type in the pleadings stage because the complaint sufficiently alleged

viewpoint discrimination). The complaint alleges that the Defendants have long opposed

Gillingham as a charter school and as Defendants noted during oral argument, support for

charter schools is a controversial political issue. (Doc. 1, ¶¶ 12-19, 119, 129; Doc. 21, at 20-

21). Public school officials may not discriminate against specific political viewpoints. See

Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 511 (1969). The complaint alleges

that Defendants discriminated against Plaintiffs based on their viewpoint regarding

Gillingham. (Doc. 1, ¶¶ 12-19, 109, 118-121, 129).

Defendants maintain they acted in accordance with a viewpoint neutral policy

restricting access to the College Fair to “school districts” affiliated with IU 29, arguing that

Gillingham cannot be considered a public school district, as it is not a member of Intermediate

Unit 29, but is merely allowed to purchase services from the IU. (Doc. 11, at 15-16; Doc. 15,

at 6). Defendants point to two Pennslvyania statutes relevant to intermediate units in support

of their argument that Pennsylvania law distinguishes school districts from charter schools,

arguing that the statutory language demonstrates that charter schools are not members of the

intermediate unit.4 According to Defendants, Plaintiffs have not alleged viewpoint

discrimination because their actions were based on a viewpoint neutral policy of excluding

students from the College Fair who do not attend public school districts affiliated with IU 29.

(Doc. 11, at 15-16; Doc. 15, at 6)

At this stage of the litigation, this argument is unavailing. According to the complaint,

Martz Hall was opened to all public school students in Schuylkill County in addition to

students from two private schools.5 (Doc. 1, at ¶¶ 71-77, 82, 118). The complaint further

4 Defendants cite to 24 Pa. Stat. Ann. § 17-1725-A(a)(4), which states that an

“intermediate unit may not charge [a] charter school more for any service than it charges the

constituent districts of the intermediate unit.” Defendants also point to 24 Pa. Stat. Ann. § 9-

910-A(a), which states that members of the board of directors for an intermediate unit are

chosen from “members of the boards of school directors of school districts comprising the

intermediate unit.”

5 The Plaintiffs’ brief in opposition also claims that students from Schuylkill

Technology Center, a technical school, were invited to attend the College Fair. (Doc. 14, at

9). This issue was also raised at oral argument. (Doc. 21, at 18-19). Notably, the complaint

itself does not allege this technical school was invited. An exhibit attached to the complaint

shows someone from the Schuylkill Technology Center sent the invitation to the College Fair

to Gillingham. (Doc. 1-4). However, the complaint does not allege that any students from the

Schuylkill Technology Center were invited to the College Fair or assert that the inclusion of

email addresses from Schuylkill Technology Center on the exhibit establishes that students

from Schuylkill Technology Center must have been invited to the College Fair. As such, the

alleges that the Defendants banned “only Plaintiffs from attending and recording the College

Fair” on the basis of their controversial viewpoints regarding Gillingham. (Doc. 1, at ¶¶ 119-

120, 126, 129). Thus, Defendants’ argument that they acted pursuant a viewpoint neutral

policy is contradicted by the complaint. Allegations that a government entity “unevenly

enforced its policies” support an allegation of viewpoint discrimination. See Ne. Pennsylvania

Freethought Soc'y, 158 F. Supp. 3d at 255. Plaintiffs have thus sufficiently alleged that

Defendants violated their First Amendment speech and assembly rights, and Defendants’

motion to dismiss Counts I and II is DENIED. (Doc. 10).

C. FIRST AMENDMENT RETALIATION CLAIM (COUNT III)

In Count III, Plaintiffs allege Defendants violated their First Amendment rights by

retaliating against them for exercising their First Amendment rights of freedom of speech and

assembly. (Doc. 1, ¶¶ 132-137). Defendants move to dismiss Count III on the basis that

Plaintiffs did not have a First Amendment right to speech and assembly at the College Fair

and thus, Plaintiffs could not be retaliated against for exercising their First Amendment rights.

(Doc. 11, at 17). Plaintiffs counter this argument by averring that Plaintiffs did have valid

First Amendment right to speech and assembly at the College Fair and that Defendants

retaliated against them for exercising these rights by asking all the college representatives at

the College Fair to sit on the upper lobby bleachers and watch Plaintiffs walk around an empty

College Fair in a “fishbowl” environment. (Doc. 14, at 21-22).

“‘[T]he First Amendment prohibits government officials from subjecting an individual

to retaliatory actions’ for engaging in protected speech” Nieves v. Bartlett, 587 U.S. 391, 398

Court will not consider this allegation for purposes of the motion to dismiss. See Brooks, 707

F. Supp. 3d at 468.

(2019). According to the Third Circuit, to establish a First Amendment retaliation claim, “a

plaintiff ‘must prove (1) that he engaged in constitutionally-protected activity; (2) that the

government responded with retaliation; and (3) that the protected activity caused the

retaliation.’ ‘The threshold requirement is that the plaintiff identify the protected activity that

allegedly spurred the retaliation.’” George v. Rehiel, 738 F.3d 562, 585 (3d Cir. 2013) (citations

omitted). To survive a motion to dismiss, “[a] plaintiff must identify the protected activity

that allegedly caused the retaliation.” Stascavage v. Borough of Exeter, No. 3:11-CV-0772, 2012

WL 2885002, at *6 (M.D. Pa. July 13, 2012). A complaint must also allege “sufficient facts

describing when and how Defendants allegedly retaliated against Plaintiffs to survive a

motion to dismiss.” Davis v. Fox, No. 3:12-CV-1660, 2014 WL 6463778, at *4 (M.D. Pa. Nov.

17, 2014). Finally, the complaint must allege facts that “prove either (1) an unusually

suggestive temporal proximity between the protected activity and the allegedly retaliatory

action, or (2) a pattern of antagonism coupled with timing to establish a causal link.” Lauren

W. ex rel. Jean W. v. DeFlaminis, 480 F.3d 259, 267 (3d Cir. 2007). Courts will deny dismissal

where complaints allege both a pattern of antagonism and suspicious temporal proximity. See

Davis, 2014 WL 6463778, at *5 (denying a motion to dismiss where the complaint alleged

both retaliation two weeks after the protected conduct in question and “a pattern of

antagonism that makes it plausible that Plaintiffs' purported protected activity was a

substantial factor in the retaliatory conduct alleged”).

Defendants only contest Count III on the grounds that the complaint fails to allege

Plaintiffs engaged in protected conduct. (Doc. 11, at 17). Given that the Court has determined

that Plaintiffs adequately alleged their speech and assembly claims (Counts I and II), this

argument fails. Defendants do not address the other pleading requirements of a retaliation

claim. As such, the Defendants’ motion to dismiss Count III is DENIED. (Doc. 10).

D. FOURTH AMENDMENT CLAIM (COUNT IV)

In Count IV of the complaint, Plaintiffs allege violations of their Fourth Amendment

right to be free of unreasonable seizure. (Doc. 1, ¶¶ 138-143). Plaintiffs argue “the PASD

Defendants seized Plaintiffs [in violation of the Fourth Amendment] by placing their hands

upon them and restricting their movements.” (Doc. 14, at 23-24). Defendants move to dismiss

Plaintiffs’ Fourth Amendment claim, arguing that the force alleged in the complaint does not

constitute a seizure for purposes of the Fourth Amendment. (Doc. 11, at 18). According to

the Defendants, Plaintiffs “were merely ushered to another area of the gymnasium.” (Doc.

11, at 18). Further, at oral arugment, Defendants cited Gottlieb ex rel. Calabria v. Laurel

Highlands School District, in support of their assertion that traditional Fourth Amendment

standards do not because of this matter’s public-school setting. 272 F.3d 168, 171 (3d Cir.

2001). (Doc. 21, at 39-49). Plaintiffs contend that Gottlieb did not apply due to the Plaintiffs

not being the students of the Defendants. (Doc. 21, at 40-41).

The Third Circuit has “recognized that public schools are in a ‘unique constitutional

position,’ because ‘[o]nce under the control of the school, students' movement and location

are subject to the ordering and direction of teachers and administrators.’” Gottlieb, 272 F.3d

at 171 (quoting Wallace by Wallace v. Batavia Sch. Dist. 101, 68 F.3d 1010, 1013 (7th Cir. 1995)).

In public schools, “[t]he ‘momentary use of physical force by a teacher in reaction to a

disruptive or unruly student does not effect a ‘seizure’ of the student under the Fourth

Amendment,’ and therefore ‘is a scenario to which the Fourth Amendment does not textually

or historically apply.’” Gottlieb, 272 F.3d at 172 (quoting Kurilla v. Callahan, 68 F. Supp. 2d

556, 563 (M.D. Pa. 1999)).

Courts in the Third Circuit vary in their application of Gottlieb outside of the traditional

classroom context. Courts in the Eastern District of Pennsylvania applied Gottlieb to dismiss

Fourth Amendment claims where the defendant was a school official, and the plaintiff was a

non-student. See e.g., Easley v. City of Philadelphia, No. CIV.A. 14-2699, 2015 WL 1408910, at

*2 (E.D. Pa. Mar. 27, 2015) (“though [plaintiff] was not a student, he avers that the Defendant

[] was a teacher and at all times acted within the course and scope of his employment”); see

also e.g., Johnson v. Sch. Dist. of Philadelphia, No. CIV. A. 06-4826, 2008 WL 3927381, at *5

(E.D. Pa. Aug. 21, 2008) (dismissing a non-student’s Fourth Amendment claim against a

school official in consideration of public policy of maintaining school safety). More recently,

a court in the Eastern District found that Gottlieb’s Fourth Amendment analysis cannot apply

where a plaintiff is not under the control of a school. See Rodriguez Fuentes v. Sch. Dist. of City

of Philadelphia, No. CV 17-3736, 2019 WL 1505861, at *4 (E.D. Pa. Apr. 4, 2019) (“In contrast

to the plaintiff in Gottlieb, the plaintiff in the present case was not under the control of his

school at the time of the incident. As a result, plaintiff here experienced the type of detention

or physical restraint is that is required to effectuate a seizure.”)

Central to the analysis in Gottlieb is the idea that the plaintiff is subject to the control

of the school at the time of the incident. See Rodriguez Fuentes, 2019 WL 1505861, at *4; see

also Gottlieb, 272 F.3d at 171 (stating “[c]ourts have recognized that public schools are in a

‘unique constitutional position,’ because ‘[o]nce under the control of the school, students’

movement and location are subject to the ordering and direction of teachers and

administrators.’” (internal citations omitted). While Gottlieb involved physical force by a

teacher in reaction to a disruptive or unruly student, it did not contemplate the circumstances

alleged here. (Doc. 1, ¶¶ 3-8. 22-64, 93-102). As such, the Court concludes that Gottlieb does

not foreclose Plaintiffs’ Fourth Amendment claim at this juncture, as Plaintiffs are not

Defendants’ students, and the College Fair was not a traditional school setting.

The Court now turns to Defendants’ arguments that this Count fails under general Fourth

Amendment principles. The Fourth Amendment states:

The right of the people to be secure in their persons, houses, papers, and effects,

against unreasonable searches and seizures, shall not be violated, and no

Warrants shall issue, but upon probable cause, supported by Oath or

affirmation, and particularly describing the place to be searched, and the

persons or things to be seized.

U.S. CONST. amend. IV.

A seizure “can take the form of ‘physical force’ or a ‘“show of authority’ that ‘in some way

restrain[s] the liberty’ of the person.” Torres v. Madrid, 592 U.S. 306, 311 (2021) (quoting Terry

v. Ohio, 392 U.S. 1, 19 (1968)). Further, a seizure may occur if there is either “(a) ‘a laying on

of hands or application of physical force to restrain movement, even when it is ultimately

unsuccessful,’ or (b) submission to ‘a show of authority.’” United States v. Brown, 448 F.3d

239, 245 (3d Cir. 2006) (quoiting California v. Hodari D., 499 U.S. 621, 626 (1991)). The Third

Circuit has held that momentarily grabbing or pushing an individual is insufficient to

constitute a seizure. See Smith v. Dep't of Gen. Servs. of PA., 181 F. App'x 327, 330 (3d Cir. 2006)

Further, the use of force does not rise to “the level of a seizure [where plaintiff’s] movement

was not occluded” or where the force applied is minimal and only briefly restricts a plaintiff’s

movement. Ashton v. City of Uniontown, 459 F. App'x 185, 189 (3d Cir. 2012). More severe

uses of force that “temporarily immobilizes or causes injury” do constitute seizures. See e.g.,

Gross v. Cairo, No. 1:21-CV-2188, 2022 WL 4279707, at *2 (M.D. Pa. Sept. 15, 2022), aff'd,

No. 22-2920, 2023 WL 8646265 (3d Cir. Dec. 14, 2023) (finding a seizure occurred where

defendant “struck [a pregnant plaintiff in the stomach] with enough force to cause severe pain

and hemorrhaging”); see also e.g., El v. City of Pittsburgh, 975 F.3d 327, 336 (3d Cir. 2020) (a

seizure occurred where an officer grabbed a plaintiff “by the wrist and neck, slam[ed] him

back into the wall of the vacant storefront, and [took] him to the ground”).

The Court finds that Plaintiffs have adequately alleged claims of unlawful seizure.

Specifically, the complaint contains allegations of the PASD Superintendent “grabbing

[Plaintiff C.H.’s] arm, forcing his arm down, and attempt[ing] to seize his phone from his

hand,” “attempt[ing] to physically remove Plaintiffs from the gymnasium floor,” “physically

block[ing]” Plaintiffs, “push[ing Plaintiff S.K.] back and forcefully “restrain[ing] him by

grabbing him on his shoulders.” (Doc. 1, ¶¶ 94-95, 97). The complaint also states that

Plaintiffs believed they were “being detained by. . . Defendants Peters and Stasulli.” (Doc. 1,

¶ 100). Plaintiffs allege more extensive and prolonged physical contact than just being struck

once in the back, slapped and briefly grabbed by the collar, or having their arm momentarily

grabbed. (Doc. 1, ¶¶ 94-95, 97). At this early stage of the litigation, the Court finds that the

complaint sufficiently alleges that Defendants used force to restricted Plaintiffs’ movements

such that Plainitffs were seized in violation of the Fourth Amendment. Defendants’ motion

to dismiss Count IV is DENIED. (Doc. 10).

E. SUBSTANTIVE DUE PROCESS CLAIM (COUNT VI)

Count VII is brought by Plaintiffs Nagle, Ulrich, Martin, B.B., K.B., M.B., S.C., C.H.,

S.K., J.K., S.M., and K.R. (collectively, “Excessive Force Plaintiffs”) against PASD

Superintendent, and alleges violations of the Fourteenth Amendment substantive due process

right to be free from excessive force. (Doc 1, ¶¶ 150-159). Defendants argue that none of the

physical contact in the complaint was severe enough to sustain this claim. (Doc. 11, at 17-18).

Plaintiffs respond that the level of force was sufficient to raise substantive due process

concerns because the “use of physical force against Plaintiffs was excessive and egregious.”

(Doc. 14, at 33-34).

The Fourteenth Amendment reads in relevant part: “nor shall any State deprive any

person of life, liberty, or property, without due process of law.” U.S. CONST. amend. XIV.

The Supreme Court has long held that this provision “‘guarante[es] more than fair process,’

and [] cover[s] a substantive sphere as well, ‘barring certain government actions regardless of

the fairness of the procedures used to implement them.’” Cnty. of Sacramento v. Lewis, 523 U.S.

833, 840 (1998). “Noting its ‘reluctan[ce] to expand the concept of substantive due process,’

the Supreme Court has established the ‘more-specific-provision rule.’” Betts v. New Castle Youth

Dev. Ctr., 621 F.3d 249, 260 (3d Cir. 2010) (quoting Cnty. of Sacramento v. Lewis, 523 U.S. 833,

842 (1998)). “Under this rule, ‘if a constitutional claim is covered by a specific constitutional

provision, such as the Fourth or Eighth Amendment, the claim must be analyzed under the

standard appropriate to that specific provision, not under the rubric of substantive due

process.’” Betts, 621 F.3d at 260 (quoting United States v. Lanier, 520 U.S. 259, 272 (1997)).

However, when assessing uses of force, the Supreme Court has held that where a use of force

does not constitute a seizure, substantive due process applies. See Cnty. of Sacramento, 523

U.S. at 843 (“Substantive due process analysis is therefore inappropriate in this case only if

respondents' claim is ‘covered by’ the Fourth Amendment. It is not. The Fourth Amendment

covers only ‘searches and seizures.’ Neither of which took place here”). According to the

Third Circuit, this means when plaintiffs cannot “establish that he [were] seized as required

for a Fourth Amendment violation, [their] excessive force claim is then subject to a

substantive due process analysis.” Ashton, 459 F. App'x at 189–90.

“To establish a substantive due process claim, a plaintiff must demonstrate: 1) an actor

engaged in conduct under color of state law; 2) a deprivation of a protected liberty interest by

that conduct; and 3) the deprivation shocks the conscience.” Ashton, 459 F. App'x at 189.

Even if a plaintiff sustains an injury and a defendant’s use of force is improper, a substantive

due process claim will fail if it is “neither egregious nor conscience shocking under the

circumstances.” Smith, 181 F. App'x at 331. The Third Circuit has “consistently held that only

the most egregious official conduct shocks the conscience.” Ashton, 459 F. App'x at 189. “The

pertinent inquiry is ‘whether the force applied caused injuries so severe, was so

disproportionate to the need presented, and was so inspired by malice or sadism rather than

a merely careless or unwise excess of zeal that it amounted to a brutal and inhumane abuse

of official power literally shocking to the conscience.’” Kurilla v. Callahan, 68 F. Supp. 2d 556,

564 (M.D. Pa. 1999) (quoting Jones v. Witinski, 931 F. Supp. 364, 369 (M.D. Pa. 1996)). Not

all allegations of assault rise to the level of conscious shocking conduct. See e.g., Ashton, 459

F. App'x at 190 (deciding that a parking officer striking a plaintiff in the back “with a closed

fist while inappropriate, does not rise to conscience shocking behavior”); Fields, 2016 WL

7324594, at *7 (slapping a plaintiff and briefly grabbing his collar did not shock the conscious).

Allegations of serious physical injury caused by assault are sufficient as allegations of

conscious shocking conduct if the injuries are severe enough. See e.g., Gross, 2022 WL

4279707, at *3 (denying dismissal of a substantive due process claim where a pregnant woman

was punched in the stomach which caused severe injury and hemorrhaging).

Here, the complaint alleges that the PASD Superintendent forcefully grabbed, shoved,

restrained, and bumped Excessive Force Plaintiffs. (Doc. 1, ¶¶ 94-99). This conduct is defined

as “assaults and batteries” and the complaint alleges that because of these “assaults and

batteries,” Excessive Force Plaintiffs “suffered physical injuries.” (Doc. 1, ¶¶ 157, 159). The

complaint does not define or describe these injuries. Allegations of assault with unspecified

or minimal injuries are insufficient to meet the shocks the conscious standard. See Ashton, 459

F. App'x at 190 (finding that striking a plaintiff in the back “with a closed fist while

inappropriate, does not rise to conscience shocking behavior”); see also Fields, 2016 WL

7324594, at *7 (providing that slapping and grabbing a plaintiff’s collar does not shock the

conscious). Here, because Excessive Force Plaintiffs’ injuries are not defined, the Court finds

that the complaint is insufficient in its allegations of conscious-shocking behavior. See Ashton,

459 F. App'x at 190 (affirming dismissal of a substantive due process claim because plaintiff

failed to alleged a severe enough use of force or “ongoing pain or injury”). As such,

Defendants’ motion to dismiss Count VI of the complaint is GRANTED. (Doc. 10).

F. EQUAL PROTECTION CLAIM (COUNT V)

In Count V of the complaint, Plaintiffs allege violations of the Equal Protection Clause

of the Fourteenth Amendment. (Doc. 1, ¶¶ 144-149). Defendants move to dismiss Count V,

arguing: 1) Plaintiffs had no right to attend the College Fair because they were not invited, 2)

“it was well within the purview of the Defendants to rescind a mistakenly extended

invitation,” and 3) Plaintiffs were not treated differently than similarly situated individuals.

(Doc. 11, at 20-21). Regarding their third point, Defendants argue that the Plaintiffs were not

similarly situated to the students who attended the College Fair because Plaintiffs were not

invited and were not students from a “public school district” affiliated with IU 29. (Doc. 11,

at 20-21). According to Defendants, Plaintiffs were similarly situated to students from the two

private schools whom the Defendants claim did not attend the College Fair. (Doc. 11, at 20-

21). Plaintiffs counter that they were similarly situated to the attendees of the College Fair,

and “Defendants intentionally discriminated against Plaintiffs because of their status as public

charter school students.” (Doc. 14, at 28-33). Plaintiffs assert that they were similarly situated

to the attendees of the College Fair because they were public-school students and teachers

from a school affiliated with IU 29. (Doc. 14, at 28-33). Plaintiffs further aver that Defendants

intentionally discriminated against Plaintiffs as charter school students and teachers without

a rational basis for doing so. (Doc. 14, at 28-33). Defendants and Plaintiffs agree that the

relevant standard for this case is the class of one theory. (Doc. 11, at 20; Doc. 14, at 24).

The Equal Protection Clause of the Fourteenth Amendment reads: “nor shall any

State. . . [d]eny to any person within its jurisdiction the equal protection of the laws.” U.S.

CONST. amend. XIV. While assessing equal protection claims, courts are particularly

concerned with disparate treatment that “burdens a fundamental right [or] targets a suspect

class.” Romer v. Evans, 517 U.S. 620, 631 (1996). If neither a fundamental right nor suspect

class are targeted, the Supreme Court has “recognized successful equal protection claims

brought by a ‘class of one,’ where the plaintiff alleges that she has been intentionally treated

differently from others similarly situated and that there is no rational basis for the difference

in treatment.” Vill. of Willowbrook v. Olech, 528 U.S. 562, 564 (2000).

To successfully plead a violation of the Equal Protection Clause under the class of one

theory, “a plaintiff must allege that (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).

“Persons are similarly situated under the Equal Protection Clause when they are alike ‘in all

relevant aspects.’” Startzell v. City of Philadelphia, Pennsylvania, 533 F.3d 183, 203 (3d Cir. 2008)

(quoting Nordlinger v. Hahn, 505 U.S. 1, 10 (1992)). It is insufficient for a plaintiff to allege

“commonality at a very general level.” Lasche v. New Jersey, No. 20-2325, 2022 WL 604025,

at *6 (3d Cir. Mar. 1, 2022). However, similarly situated does not mean identically situated.

See Hynoski v. Columbia Cnty. Redevelopment Auth., 941 F. Supp. 2d 547, 567 (M.D. Pa. 2013);

see also Thomas v. Coopersmith, No. CIV.A. 11-7578, 2012 WL 3599415, at *5 (E.D. Pa. Aug.

21, 2012); Montanye v. Wissahickon Sch. Dist., 327 F. Supp. 2d 510, 519 (E.D. Pa. 2004).

Dismissal may be inappropriate if the determination of whether a plaintiff is similarly situated

to others requires a fact-intensive inquiry. See Borrell v. Bloomsburg Univ., 955 F. Supp. 2d 390,

405 (M.D. Pa. 2013); see also McLaughlin v. Forty Fort Borough, 64 F. Supp. 3d 631, 648 (M.D.

Pa. 2014).

The Court finds that Plaintiffs have sufficiently alleged their Equal Protection claim.

(Doc. 1, ¶¶ 145-146). The relevant equal protection issue is not whether Plaintiffs had an

affirmative right to attend the College Fair or whether Defendants have a right to rescind a

mistakenly sent invitation. (Doc. 11, at 20-21). Rather, the relevant inquiry is whether the

complaint sufficiently alleged that Defendants “intentionally treated [Plaintiffs] differently

from others similarly situated and that there [was] no rational basis for the difference in

treatment.” Vill. of Willowbrook, 528 U.S. at 564. Further, the complaint alleges the Plaintiffs

were similarly situated to the attendees of the College Fair as students and teachers from a

public school in Schuylkill County affiliated with IU 29. (Doc. 1, ¶¶ 74-75, 82, 145-146). The

complaint further alleges that Plaintiffs were invited to the College Fair before being targeted

due to “the status of Plaintiffs as charter school students/teachers instead of being traditional

school district students/teachers like PASD.” (Doc. 1, ¶¶ 146-148). At this stage of the

litigation, the Court thus finds Plaintiffs have sufficiently alleged they were similarly situated

to the attendees of the College Fair, even if they were not identically situated.

Defendants do not explicitly contest the intentionality element of the class of one

standard. As such, the Court will not address intentionality at this time. Defendants’ briefing

also does not clearly address the rational basis component of the class of one theory. At oral

argument, Defendants asserted that they had an important government interest in following

PASD’s alleged long-standing policy of only inviting “school districts” that are members of

IU 29 to the College Fair. (Doc. 21, at 15). Plaintiffs noted at oral argument that they

interpreted Defendants’ citation to this longstanding policy as a proposed rational basis for

purposes of equal protection. (Doc. 21, at 37-38).

At the motion to dismiss stage, the Court is required to accept the allegations in the

complaint as true and will not examine extraneous evidence on the rationality of disparate

treatment at this juncture. See Archer v. York City Sch. Dist., No. 1:13-CV-2826, 2015 WL

13806768, at *11 (M.D. Pa. Feb. 18, 2015). The complaint alleges that the school district was

not following a policy of only inviting students from “public school districts” that were

members of IU 29, but rather, invited all public-school students and teachers from Schuylkill

County to the College Fair along with students from two private schools. (Doc. 1, ¶¶ 5, 71-

79, 82, 118, 126, 145). According to the complaint, Defendants then attempted to exclude

Plaintiffs from the College Fair due to long standing animus towards Gillingham. (Doc. 1, ¶¶

12-19, 119, 129, 146). While there may be “contrary evidence indicating [] rationality,” the

Court will not look beyond the facts presented in the complaint in this early stage.

Accordingly, Defendants’ motion to dismiss Count V is DENIED. (Doc. 10).

G. EIGHTH AMENDMENT CLAIM

In Count VII of the complaint, Plaintiffs allege violations of the Eighth Amendment.

(Doc. 1, ¶¶ 160-164). Defendants argue that Plaintiffs’ Eighth Amendment claims should be

dismissed because the “Eighth Amendment is inapplicable to the facts alleged by Plaintiffs.”

(Doc. 11, at 23). Plaintiffs, citing no caselaw, allege that the Defendants violated the Eighth

Amendment “based upon the PASD Defendants’ indiscriminate subjection of extreme

humiliation on Plaintiffs at the College Fair.” (Doc. 14, at 34-35). The Court agrees with

Defendants that the Eighth Amendment does not apply in this case.

The Eighth Amendment reads in relevant part: “[e]xcessive bail shall not be required,

nor excessive fines imposed, nor cruel and unusual punishments inflicted.” U.S. CONST.

amend. VIII. In Ingraham v. Wright, the Supreme Court held “the Eighth Amendment does

not apply to the paddling of children as a means of maintaining discipline in public schools.”

430 U.S. 651, 664 (1977). The Court reasoned that the Eighth Amendment “was designed to

protect those convicted of crimes” and except for very limited circumstances, such as cases of

excessive fines, is to be applied exclusively in the criminal context. Ingraham, 430 U.S. at 664;

see also Austin v. United States, 509 U.S. 602, 621 (1993). At the motion to dismiss stage, an

Eighth Amendment claim must be dismissed where a complaint fails to assert criminal

prosecution or excessive civil fines. See Lucas v. Francisco, No. 3:24-CV-1172, 2025 WL

769647, at *3 (M.D. Pa. Feb. 7, 2025), report and recommendation adopted, No. 3:24-CV-01172,

2025 WL 757130 (M.D. Pa. Mar. 10, 2025) (dismissing a claim where a student alleged being

denied his full Pell Grant violated the Eighth Amendment); see also Fenstermaker v. Nesfedder,

802 F. Supp. 1258, 1262 (E.D. Pa. 1992), aff'd in part, vacated in part, 9 F.3d 1540 (3d Cir.

1993) (dismissing an Eighth Amendment claim alleging a public-school wrestling coach

inflicted cruel and unusual punishment).

Here, Plaintiffs’ Eighth Amendment claim is premised on Defendants having Plaintiffs

“walk around the empty College Fair gymnasium floor while their peers and

college/university representatives (who Plaintiffs came to see), sat, stared, and gawked from

the bleachers above.” (Doc. 1, ¶ 163). These facts do not describe a punishment for a criminal

offense or an excessive civil fine. As such, Plaintiffs fail to state a claim under the Eighth

Amendment. The Defendants’ motion to dismiss Count VII is GRANTED. (Doc. 10).

H. CIVIL CONSPIRACY CLAIM

Count VIII alleges that Defendants “participated in a conspiracy to violate multiple of

Plaintiffs’ constitutional and civil rights.” (Doc. 1, ¶¶ 165-173). Defendants move to dismiss

Plaintiffs’ civil conspiracy claim because 42 U.S.C. § 1985, the statute governing federal civil

conspiracy claims, does not apply to the facts alleged in the complaint. (Doc. 11, at 20-22).

Plaintiffs argue they sufficiently pled their claim under 42 U.S.C. § 1985 because they allege

Defendants engaged in a civil conspiracy to violate Plaintiffs’ civil rights. (Doc. 14, at 35-36).

Plaintiffs clarified during oral argument that they are bringing their civil conspiracy claim

pursuant to 42 U.S.C. § 1985(3) (“Section 1985(3)”). (Doc. 21, at 32-22).

Section 1985(3) allows plaintiffs to raise a civil conspiracy claim where they allege

“two or more persons in any State or Territory conspire. . . either directly or indirectly, any

person or class of persons of the equal protection of the laws, or of equal privileges and

immunities under the laws.” 42 U.S.C. § 1985. “The language requiring intent to deprive of

equal protection, or equal privileges and immunities, means that there must be some racial,

or perhaps otherwise class-based, invidiously discriminatory animus behind the conspirators'

action.” Griffin v. Breckenridge, 403 U.S. 88, 102 (1971). In cases that do not involve racial

discrimination, to a assert a claim under Section 1985(3), a “plaintiff must allege both that the

conspiracy was motivated by discriminatory animus against an identifiable class and that the

discrimination against the identifiable class was invidious.” Farber, 440 F.3d at 135.

The Supreme Court has generally disfavored basing a Section 1985(3) claim on a

“class-based” theory stating “[w]hatever may be the precise meaning of a ‘class’ for purposes

of Griffin 's speculative extension of § 1985(3) beyond race, the term unquestionably connotes

something more than a group of individuals who share a desire to engage in conduct that the

§ 1985(3) defendant disfavors.” Bray v. Alexandria Women's Health Clinic, 506 U.S. 263, 269

(1993). However, it is possible to bring a Section 1985(3) claim under a class-based theory,

when the conduct at issue constitutes “invidious” discrimination. Farber, 440 F.3d at 142.

Generally, discrimination “motivated by a class’s immutable characteristics” is seen as

invidious. Farber, 440 F.3d at 142. While the Third Circuit has not foreclosed the possibility

that discrimination on a mutable characteristic can be invidious, discrimination on the basis

of “political affiliation surely does not qualify.” Farber, 440 F.3d at 142. Section 1985(3)

claims are subject to dismissal when the plaintiff’s class definition is based on property

ownership, sharing certain political beliefs while residing in the same township, and support

for a political candidate. See Miller v. Pocono Ranch Lands Prop. Owners Ass'n, Inc., No. CIV.A.

3:11-0317, 2012 WL 6803269, at *6 (M.D. Pa. Dec. 20, 2012), report and recommendation

adopted, No. CIV.A. 3:11-0317, 2013 WL 83601 (M.D. Pa. Jan. 7, 2013), aff'd, 557 F. App'x

141 (3d Cir. 2014); see also Friends & Residents of Saint Thomas Twp., Inc. v. Saint Thomas Dev.,

Inc., No. CIVA 1:CV-04-627, 2005 WL 6133388, at *12 (M.D. Pa. Mar. 31, 2005), aff'd sub

nom. Friends & Residents of St. Thomas Twp., Inc. v. St. Thomas Dev., Inc., 176 F. App'x 219 (3d

Cir. 2006); Foglesong v. Somerset Cnty., No. 3:12-CV-77, 2013 WL 795064, at *11-12 (W.D.

Pa. Mar. 4, 2013); cf. Gas Drilling Awareness Coal. v. Powers, No. 1:10-CV-1997, 2012 WL

5862471, at *4 (M.D. Pa. Nov. 19, 2012) (denying a motion to dismiss a 1985(3) claim where

a group of plaintiffs alleged that they were “targeted [] due to [their] advocacy of natural gas

drilling”).

Plaintiffs allege that Defendants “reached an agreement and/or understanding” to

violate Plaintiffs’ “rights under the First Amendment, Fourth Amendment, Eighth

Amendment, and the Equal Protection Clause.” (Doc. 1, ¶¶ 167-168). The complaint cites to

a history of animus towards Gillingham and alleges Defendants singled out Plaintiffs because

of this animus. (Doc. 1, ¶¶ 12-19, 146). Plaintiffs clarified at oral argument that the relevant

class for purposes of Section 1985(3) was Gillingham students and teachers. (Doc. 21, at 32).

Here, based on the allegations in the complaint, the alleged animus towards Gillingham does

not appear to be based on an immutable characteristic, but rather political opposition to

Gillingham as a charter school. (Doc. 1, ¶¶ 12-19). Discrimination against a class based on

their political stances is not considered invidious under Section 1983. See Farber, 440 F.3d at

142 (determining that discrimination based on political affiliation is not invidious under

Section 1983); Friends & Residents of Saint Thomas Twp., Inc., 2005 WL 6133388, at *12 (finding

that discrimination against neighbors who shared certain political views was not invidious

discrimination against a class under Section 1983(3)); Foglesong, 2013 WL 795064, at *12

(finding that discrimination based support for a political candidate was not invidious

discrimination against a class under Section 1985(3)). Accordingly, Defendants’ motion to

dismiss Count VIII is GRANTED. (Doc. 10; Doc. 11).

I. STATE LAW CLAIMS

Finally, in Count IX of the complaint, Plaintiffs allege violations of the Pennsylvania

Constitution’s Equal Protection Clause. (Doc. 1, ¶¶ 174-182). Defendants argue that under

28 U.S.C. § 1367(c)(3), the Court can and should dismiss the Plaintiffs’ state law claim if the

Court dismisses every federal claim. (Doc. 11, at 26-27). Plaintiffs argue the Court should

exercise pendant jurisdiction regardless of whether the Court retains all federal claims. (Doc.

14, at 37-38).

Federal district courts generally “have supplemental jurisdiction over all other claims

that are so related to claims in the action within such original jurisdiction that they form part

of the same case or controversy under Article III of the United States Constitution.” 28

U.S.C.A. § 1367. A court may decline to exercise supplemental jurisdiction over a state law

claim if “the district court has dismissed all claims over which it has original jurisdiction.” 28

U.S.C.A. § 1367. Federal district courts have “original jurisdiction of all civil actions arising

under the Constitution, laws, or treaties of the United States.” 28 U.S.C.A. § 1331.

This Court has denied dismissal of Counts I, II, II, IV, and V, all of which are claims

“arising under the Constitution. . . of the United States.” 28 U.S.C.A. § 1331. As such, the

Court has not “dismissed all claims over which it has original jurisdiction.” 28 U.S.C.A. §

1367. Accordingly, Defendants’ motion to dismiss Count IX is DENIED. (Doc. 10).

IV. LEAVE TO AMEND

The Third Circuit has instructed that if a complaint is vulnerable to dismissal for failure

to state a claim, the district court must permit a curative amendment, unless an amendment

would be inequitable or futile. Grayson v. Mayview State Hosp., 293 F.3d 103, 108 (3d Cir.

2002). Further, “[a] district court has ‘substantial leeway in deciding whether to grant leave

to amend.’” In re Avandia Mktg., Sales Practices & Products Liab. Litig., 564 F. App'x 672, 673

(3d Cir. 2014) (not precedential) (quoting Lake v. Arnold, 232 F.3d 360, 373 (3d Cir. 2000)).

Here, amending the complaint to revive Count VII, Plaintiffs’ Eighth Amendment

claim, and Count VIII, Plaintiffs’ civil conspiracy claim would be futile. Amendment is futile

where a constitutional or statutory provision cannot apply to the facts presented by a

complaint regardless of whether the plaintiff is permitted to amend their complaint. See Walker

v. CHCA Merritt-Scully, No. 3:21-CV-2167, 2022 WL 17477121, at *2-4 (M.D. Pa. Dec. 6,

2022) (denying leave to amend an Eighth Amendment claim because the Eighth Amendment

could not apply to the factual scenario presented in the complaint); see also Foglesong, 2013

WL 795064, at *11-12 (denying leave to amend a Section 1985(3) claim where a plaintiff

failed to present a class subject to invidious discrimination under Section 1985(3)). Given that

the Court has found that the Eighth Amendment cannot apply to the events at the College

Fair, amendment of Count VII would be futile. Likewise, this Court has found that Section

1985 cannot apply to alleged discrimination against Gillingham students and teachers and as

such, amendment of Count VIII would be futile. Accordingly, leave to amend Counts VII

and VIII is DENIED.

Regarding Count VI, Plaintiffs’ substantive due process claim, leave to amend should

be granted where it is possible to amend a complaint to allege “an injury of constitutional

magnitude.” Green v. Mount Carmel Area Sch. Dist., No. 4:18-CV-02218, 2019 WL 1787592, at

*9 (M.D. Pa. Apr. 24, 2019). Here, it is possible that Plaintiffs would be able to allege more

specific and severe injury which could rise to the level of a substantive due process violation.

As such, leave to amend Count VI is GRANTED.

V. CONCLUSION

For the foregoing reasons, Defendants’ motion to dismiss is GRANTED in part and

DENIED in part. (Doc. 10) Count VI is DISMISSED without prejudice. Counts VII and

VIII are DISMISSED with prejudice. Plaintiffs are granted leave to file an amended

complaint within 21 days.

An appropriate Order follows.

BY THE COURT:

Dated: June 16, 2025 s/ Karoline Mehalchick

KAROLINE MEHALCHICK

United States District Judge