Morgan

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

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

:

Plaintiff, :

:

v. : (Chief Magistrate Judge Bloom)

:

ECTV NETWORK, :

:

Defendant. :

MEMORANDUM OPINION

I. Statement of Facts and of the Case

This case comes before us for consideration of a motion for summary

judgment filed by ECTV Network (“ECTV”).1 The plaintiff, Lee

Morgan, filed this action against ECTV and others, alleging violations of

his constitutional rights when his show, “Voice of the People,” was taken

off the defendant’s public access channel.2 Several defendants have been

dismissed from this action, with ECTV remaining as the sole defendant.3

Morgan’s second amended complaint alleges that he hosted a show,

aired by ECTV, called “Voice of the People.”4 He asserts that he intended

1 Doc. 70.

2 Doc. 1.

3 Docs. 49, 56.

4 Doc. 35 ¶ 11.

for the show to give a voice to people of all political ideologies, but that

some of his shows and his guests voiced conservative political ideologies.5

For example, he alleges that he hosted an individual named Frank Scavo

who was present at the Capitol on January 6, 2021.6 He claims that after

the show with Scavo aired, ECTV, along with the City of Scranton and

Lackawanna County, made his show “so difficult to produce that he

would cease operations[.]”7 Ultimately, Morgan’s show was removed, and

he was informed his content would no longer air on ECTV.8

Morgan believes this action was taken was due to his political views

not aligning with the views of the local or county government.9 He alleges

that individuals at the Scranton Times Tribune complained about the

Scavo show.10 He further believes the City and the County influenced

ECTV’s decision to remove him from the air because he “was advised that

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

the Scavo show.11 Morgan asserts that ECTV is controlled by the City

5 ¶¶ 14, 26.

6 ¶ 27.

7 ¶ 34.

8 ¶ 36.

9

10 ¶ 37.

11 ¶¶ 24-25, 30.

and County via funding and its board of directors, which he alleges

allowed the government to retain control over or influence ECTV’s

decision regarding the content it aired.12 For its part, ECTV asserts that

it is private entity incorporated under the Noncorporation Law of 1988.13

Thus, as to ECTV, Morgan asserts claims of First Amendment

retaliation, as well as Equal Protection and Due Process violations under

the Fourteenth Amendment.14 Specifically, Morgan contends that his

free speech rights were violated, he was treated differently than other

content creators that aired on ECTV, and he was not given due process

when his show was removed.15 For its part, ECTV filed a motion for

summary judgment, arguing that as a private entity, it is not a state actor

and is not subject to liability for the alleged constitutional violations.16

This motion is briefed and ripe for resolution.17 After consideration,

we conclude that Morgan’s claims fail as a matter of law because ECTV

12 ¶¶ 19-22.

13 Doc. 71 ¶ 1; Doc. 71-1 at 2-4.

14 ¶¶ 41-57.

15

16 Doc. 70.

17 Docs. 72, 75. In his belatedly filed brief in opposition, Morgan fails to

address many of the defendant’s arguments concerning his claims.

Additionally, Morgan takes issue with the undersigned’s denial of his

request for an extension of the discovery deadline, suggesting that he

is not a state actor. Accordingly, we will grant the defendant’s motion for

summary judgment.

II. Discussion

A. Motion for Summary Judgment - Standard of Review

The defendant has filed a motion for summary judgment pursuant

to Rule 56 of the Federal Rules of Civil Procedure. Rule 56(a) provides

that a court shall grant summary judgment “if the movant shows that

there is no genuine dispute as to any material fact and the movant is

entitled to judgment as a matter of law.”18 The materiality of the facts

will depend on the substantive law.19 Thus, “[o]nly disputes over facts

received unfair treatment because he is unrepresented. Doc. 76. We

remind the plaintiff that we held a telephone conference with Morgan

and counsel for the defendant roughly three weeks prior to the close of

fact discovery, at which time the parties informed the Court that there

were no outstanding discovery issues, and neither party requested an

extension of the discovery deadline. Instead, Morgan requested an

extension of the deadline just three days prior to the close of fact

discovery, which we ultimately denied due to the parties’ representations

just weeks earlier that no extension was needed. Docs. 66, 69. We

have not treated Morgan any less favorably because he is unrepresented.

Rather, we have afforded Morgan every opportunity to present his case,

including granting extensions for briefing and other filings when the

plaintiff missed his deadlines and accepting his late filings. ,

Docs. 44, 53, 73.

18 Fed. R. Civ. P. 56(a).

19 , 477 U.S. 242, 248 (1986).

that might affect the outcome of the suit under governing law” will

preclude summary judgment.20 A dispute is only genuine if a reasonable

juror could find in favor of the nonmoving party.21

The moving party bears the initial burden to “demonstrate the

absence of a genuine issue of material fact,” relying on pleadings,

depositions, affidavits, and other evidence in the record.22 If the movant

“successfully points to evidence of all of the facts needed to decide the

case on the law,” the nonmovant can still defeat summary judgment by

pointing to evidence in the record which creates a genuine dispute of

material fact and from which a jury could find in its favor.23 However,

“[i]f the evidence is merely colorable, or is not significantly probative,

summary judgment may be granted.”24 A court may not make credibility

determinations or weigh the evidence, but “must view the facts in the

light most favorable to the non-moving party.”25

20 .

21

22 , 477 U.S. 317, 323 (1986).

23 , 479 F.3d 232,

238 (3d Cir. 2007).

24 , 477 U.S. at 249-50 (citations omitted).

25 , 418 F.3d 265, 267 (3d Cir. 2005).

B. The Motion for Summary Judgment will be Granted.

After consideration, we conclude that ECTV, a private, nonprofit

corporation, is not a state actor, and therefore, cannot be liable for the

alleged constitutional violations. Morgan asserts his claims against

ECTV pursuant to 42 U.S.C. 1983, alleging violations of his

constitutional rights. Section 1983 provides, in pertinent part, as follows:

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.26

Therefore, “Section 1983 imposes civil liability upon any person who,

acting under the color of state law, deprives another individual of any

rights, privileges, or immunities secured by the Constitution or laws of

the United States.”27 Section 1983 “does not create any new substantive

26 42 U.S.C. § 1983.

27 , 422 F.3d 141, 146 (3d Cir.

2005) (citation omitted).

rights but instead provides a remedy for the violation of a federal

constitutional or statutory right.”28

Accordingly, to state a claim under Section 1983, a plaintiff must

plead two elements: (1) the conduct complained of was committed by a

“person” acting under color of law; and (2) that conduct deprived the

plaintiff of a right, privilege, or immunity secured by the Constitution or

laws of the United States 29 The Third Circuit has set forth three broad

tests to determine if a private entity or actors can be said to have acted

under color of state law:

(1) “whether the private entity has exercised powers that are

traditionally the exclusive prerogative of the state”; (2)

“whether the private party has acted with the help of or in

concert with state officials”; and (3) 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.”30

Morgan’s amended complaint appears to rely on the theory that

ECTV, in operating the public access channel, is exercising powers that

28 (citation omitted).

29 , 219 F.3d 261, 268 (3d Cir. 2000)

(citation omitted); , 920 F.2d 1135, 1141–

42 (3d Cir. 1990).

30 , 589 F.3d 626, 646 (3d Cir. 2009) (quoting

, 51 F.3d 1137, 1142 (3d Cir. 1995)).

are traditionally and exclusively prerogative of the state. But the

Supreme Court of the United States has held that private operators of

cable access channels like ECTV do not exercise powers that are

traditionally and exclusively a function of the state, and as such, are not

state actors under Section 1983.31

In ,

producers of a cable television show brought an action against the private

nonprofit corporation that operated a public access channel, Manhattan

News Network (“MNN”), alleging that their access to the public access

channel was restricted due to the content of their film in violation of their

First Amendment rights.32 In a 5-4 decision, the majority held that MNN

was not a state actor subject to liability because “operating public access

channels on a cable system is not a traditional, exclusive public function

within the meaning of this Court’s cases.”33 The Court recognized that

“very few” functions fall into this category, and found that “[p]roviding

some kind of forum for speech” does not, in itself, transform a private

31 , 587 U.S. 802,

811 (2019).

32 at 807.

33 at 811.

entity into a state actor.34 Nor does having a license or contract with the

government, or being regulated by it, transform a private actor into a

state actor, “unless the private entity is performing a traditional,

exclusive public function.”35

Here, Morgan bases his claim, in part, on his allegations that

ECTV’s funding is controlled by the City of Scranton through its mayor

and city council.36 But as the Supreme Court found, the fact that a

government contracts with a private actor does not transform that

private actor into a state actor.37 Accordingly, Morgan’s theory that

ECTV is a state actor because it is funded by the local government is

insufficient to establish that ECTV is a state actor.

Morgan also vaguely alleges in a conclusory fashion that the City of

Scranton directed ECTV’s actions to remove Morgan’s show from the air,

and that the City or Lackawanna County essentially controlled ECTV

34 at 809, 812.

35 at 814-15 (citations omitted).

36 Doc. 35 ¶ 20.

37 , 587 U.S. at 814; , No. 21-CV-875,

2021 WL 5356804, at *4-5 (E.D. Pa. Nov. 17, 2021) (applying and

concluding that allegations that a private corporation receives

government funding is insufficient to establish it is a state actor for

purposes of Section 1983).

through selecting its board of directors.38 While these allegations, at first

glance, appear to assert that ECTV acted jointly with state officials, in

his deposition, Morgan conceded that he had no information that the City

controlled ECTV.39 He further stated that he had no information that

anyone in the City government selected the board members of ECTV or

directed ECTV to remove his show from the air as he alleged in his

amended complaint.40

While Morgan attempts to rely on the allegations in his complaint,

the Court of Appeals has recognized that “summary judgment is

essentially ‘put up or shut up’ time for the non-moving party: the non-

moving party must rebut the motion with facts in the record and cannot

rest solely on assertions made in the pleadings, legal memoranda, or oral

argument.”41 This is true even when a plaintiff is proceeding —

“[o]n a motion for summary judgment, a pro se plaintiff is not relieved of

his obligation under Rule 56 to point to competent evidence in the record

38 Doc. 35 ¶¶ 20-23.

39 Doc. 71-1 at 44.

40 at 73-74.

41 , 455 F.3d 195, 201 (3d Cir. 2005).

that is capable of refuting a defendant’s motion for summary judgment.”42

Here, Morgan provides no competent evidence to refute ECTV’s assertion

that it is a private, nonprofit corporation. Nor does he provide any

evidence to support his claims that ECTV was controlled or directed by

the City or local government to remove his program from the air.

Accordingly, we conclude that ECTV is not a state actor subject to

Section 1983 liability.43 This is fatal to Morgan’s claims under the First

and Fourteenth Amendments.44 Thus, we will grant the defendant’s

motion for summary judgment, and Morgan’s second amended complaint

will be dismissed.

42 , 606 F. Supp. 3d 151, 154 (E.D. Pa. 2022)

(internal citations and quotation marks omitted).

43 Because the question of whether ECTV is a state actor is dispositive of

Morgan’s claims, we decline to address the defendants’ remaining

arguments.

44 To the extent Morgan also asserts his due process claim under the

Pennsylvania Constitution ( Doc. 35, Count III), we decline to exercise

supplemental jurisdiction over this state law claim. 28 U.S.C. §

1367(c)(3) (“The district courts may decline to exercise supplemental

jurisdiction over a claim under subsection (a) if- ... the district court has

dismissed all claims over which it has original jurisdiction.”);

, 383 U.S. 715, 726 (1966).

III. Conclusion

For the foregoing reasons, the defendant’s motion for summary

judgment will be GRANTED, and this case will be DISMISSED.

An appropriate order follows.

Daryl F. Bloom

Chief United States Magistrate Judge

Dated: February 27, 2025