Dutchmen MX Park, LLC v. Schuylkill County, Pennsylvania et al
MEMORANDUM and ORDER granting 10 Schuylkill's Motion to Dismiss; and granting Washington Township's 19 Motion to Dismiss; Clerk of Court is directed to CLOSE case. Signed by Honorable James M. Munley on 9/23/11 (sm, )
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
DUTCHMEN MX PARK, LLC,
Before the court for disposition are motions to dismiss filed by both
defendants, Schuylkill County, Pennsylvania and Washington Township.
The motions are fully briefed and ripe for disposition.
Plaintiff Dutchmen MX Park, LLC (hereinafter “Dutchmen”) is a
Pennsylvania Limited Liability Company with its principal place of business
in Pine Grove, Pennsylvania. (Doc. 1, Compl. ¶ 9). Plaintiff seeks to
develop an adult entertainment establishment to feature live nude or
partially nude female dancers. (Id. ¶ 12). The location for the proposed
establishment is in Pine Grove, Washington Township, Schuylkill County,
Pennsylvania. (Id. ¶ 13). Washington Township (“the Township”) does not
have a zoning ordinance, therefore, the Schuylkill County’s (“the County”)
Zoning Ordinance applies to property within the township. (Id. ¶ 17). If the
Township enacted its own zoning ordinance, then the County’s zoning
ordinance would not apply within the township. (Id. ¶ 18).
The plaintiff does not seek to present nudity for its own sake. (Id. ¶
23). It seeks to have nude dancers “communicate a specific message of
eroticism which includes both an intellectual component and an emotive
component emphasizing sensuality, passion and excitement. . . . Plaintiff
believes that providing this form of expressive communication to the public
is a beneficial social activity which enhances individuals’ conscious ability
to assimilate and consider various issues involving sexual candor and
interest in human sexuality that all human beings have to a greater or
lesser degree.” (Id. ¶¶ 20-21). Plaintiff further seeks to serve alcoholic
beverages to the patrons who take part in this expressive communication.
(Id. ¶ 12).
The Schuylkill County Zoning Ordinance places restrictions on the
location of “adult uses.” (Id. ¶ 25). The Zoning Ordinance also requires a
special exception for adult uses. (Id. ¶ 26).
Based upon these facts the plaintiff filed the instant complaint
pursuant to 42 U.S.C. § 1983 alleging constitutional violations. Plaintiff
asks for declaratory and injunctive relief. The complaint is comprised of
the following seven counts:1 Count I, a First Amendment claim alleging that
the Zoning Ordinance furthers no substantial government interest; Count II,
a First Amendment claim alleging that the regulatory provisions within the
Zoning Ordinance further no substantial governmental interest; Count III, a
state law cause of action asserting that the regulatory provisions of the
special exception section of the Zoning Ordinance violate the Pennsylvania
Municipalities Planning Code, 53 PENN. STAT. 10101, et seq.; Count IV, a
First Amendment claim against the County alleging insufficient avenues of
communication in Schuylkill County; Count V, First Amendment claim
against the County alleging that the special exception procedures are
unconstitutional and render no sites available as a matter of right; Count
VI, a First Amendment claim asserting that insufficient sites for adult uses
Each count seeks relief from both the County and the Township.
are available in Washington Township; and Count VII, a Fourteenth
Amendment claim alleging that ambiguities in the special exception
regulations render them unconstitutional.
Both defendants have filed motions to dismiss pursuant to Rule
12(b)(6) of the Federal Rules of Civil Procedure, bringing the case to its
As this case is brought pursuant to 42 U.S.C. § 1983, we have
jurisdiction under 28 U.S.C. § 1331 (“The district courts shall have original
jurisdiction of all civil actions arising under the Constitution, laws, or
treaties of the United States.”). We have supplemental jurisdiction over
the plaintiff’s state law claims pursuant to 28 U.S.C. § 1367.
Standard of review
This case is before the court pursuant to defendants' motions to
dismiss for failure to state a claim upon which relief can be granted filed
pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. When a
12(b)(6) motion is filed, the sufficiency of the allegations in the complaint is
tested. Granting the motion is appropriate if, accepting as true all the facts
alleged in the complaint, the plaintiff has not pleaded “enough facts to state
a claim to relief that is plausible on its face,” or put another way, “nudged
[his or her] claims across the line from conceivable to plausible.” Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). The Third Circuit
interprets Twombly to require the plaintiff to describe “enough facts to raise
a reasonable expectation that discovery will reveal evidence of” each
necessary element of the claims alleged in the complaint. Phillips v.
County of Allegheny, 515 F.3d 224, 234 (3d Cir. 2008) (quoting Twombly,
550 U.S. at 556). Moreover, the plaintiff must allege facts that “justify
moving the case beyond the pleadings to the next stage of litigation.” Id. at
In relation to Federal Rule of Civil Procedure 8(a)(2), the complaint
need only provide “‘a short and plain statement of the claim showing that
the pleader is entitled to relief,’ in order to ‘give the defendant fair notice of
what the . . . claim is and the grounds upon which it rests,’” Twombly, 550
U.S. at 555 (citation omitted). “[T]he factual detail in a complaint [cannot
be] so undeveloped that it does not provide a defendant the type of notice
of claim which is contemplated by Rule 8.” Phillips, 515 F.3d at 232
(citation omitted). “Rule 8(a)(2) requires a ‘showing’ rather than a blanket
assertion of an entitlement to relief.” Id.
The issue is whether the facts alleged in the complaint, if true,
support a claim upon which relief can be granted. In deciding a 12(b)(6)
motion, the court must accept as true all factual allegations in the
complaint and give the pleader the benefit of all reasonable inferences that
can fairly be drawn therefrom, and view them in the light most favorable to
the plaintiff. Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 906 (3d
Cir.1997). To decide a motion to dismiss, a court generally should
consider only the allegations in the complaint, exhibits attached to the
complaint, matters of public record, and documents that form the basis of a
claim. See In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1426
(3d Cir. 1997); Pension Benefit Guar. Corp. v. White Consol. Indus., Inc.,
998 F.2d 1192, 1196 (3d Cir. 1993).
The defendants have filed separate motions to dismiss that we will
address in turn.
I. The Township’s Motion To Dismiss
Defendant Washington Township argues that the factual averments
of the complaint all relate to Schuylkill County. No claims are made that
the Township violated plaintiff’s rights; therefore, all claims asserted
against the Township should be dismissed. Further, most of the relief
sought by the plaintiff is sought from the County. The plaintiff does,
however, ask the court to order the Township to enact a zoning ordinance.
The law does not provide the court the authority to grant such relief.
Accordingly, the complaint should be dismissed as to the Township. After
a careful review, we agree.
As noted above, plaintiff’s constitutional claims are brought pursuant
to 42 U.S.C. § 1983 (hereinafter “section 1983"), which in pertinent part,
provides 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 . . . .
42 U.S.C. § 1983.
Thus, to establish a claim under section 1983, two criteria must be
met. First, the conduct complained of must have been committed by a
person acting under color of state law. Second, the conduct must deprive
the complainant of rights secured under the Constitution or federal law.
Sameric Corp. of Dela., Inc. v. City of Phila., 142 F.3d 582, 590 (3d Cir.
Here, plaintiff complains of conduct, that is the enactment of an
unconstitutional Zoning Ordinance. The Township, however, is not alleged
to have enacted the Zoning Ordinance. The County enacted the
Ordinance according to the complaint. The Township has taken no action
to restrict adult land uses within its borders. Therefore, the court finds that
the plaintiff does not assert a proper cause of action against the Township.
Under the Pennsylvania Municipalities Planning Code, a county can
enact a zoning ordinance. The ordinance then applies in municipalities
within that county that do not have their own zoning ordinance. 53 PENN.
STAT. §§ 10502(b)©), 10602. Here, the Township has no zoning
ordinance of its own, and the County’s zoning ordinance therefore applies.
Plaintiff alleges that the Township can be held liable because “[t]he
Township’s theoretical passivity based on the absence of an independent
zoning scheme is not passive at all. Rather, the current zoning scheme
represents a conscious decision to ratify Schuylkill County’s land use
Plaintiff cites to no authority, and our research has uncovered none,
to support the proposition that a Township must pass a zoning ordinance
to supercede a potentially invalid County ordinance. Plaintiff furthers cites
no authority for the proposition that inaction on the part of the Township in
this case amounts to “action” under Section 1983. Moreover, the plaintiff
cites to no authority that would enable this court to compel the Township to
exercise its discretion to enact a zoning ordinance. Accordingly, the
motion to dismiss on this point will be granted.
II. The County’s Motion To Dismiss
Defendant Schuylkill County also moves to dismiss the complaint.
The County claims that this court should abstain from hearing this case
under the abstention doctrine established in Younger v. Harris, 401 U.S. 37
(1971). After a careful review, we agree.2
“Generally, federal courts must adjudicate all cases and
controversies that are properly before them. New Orleans Pub. Serv., Inc.
v. City of New Orleans, 491 U.S. 350, 358 - 59 (1989). The United States
Court of Appeals for the Third Circuit explains Younger abstention as
Younger abstention is appropriate when (1)
there is a pending state proceeding that is judicial in
nature, (2) the proceeding implicates important
state interests, and (3) there is an adequate
opportunity in the state proceeding for the plaintiff to
raise its constitutional challenges. Middlesex
County Ethics Comm., 457 U.S. [423, 432 (1982).],
102 S.Ct. 2515. When all three of these factors are
met, abstention is proper unless “(1) the state
proceedings are being undertaken in bad faith or for
purposes of harassment or (2) some other
extraordinary circumstances exist, such as
proceedings pursuant to a flagrantly
unconstitutional statute, such that deference to the
state proceeding will present a significant
immediate potential for irreparable harm to the
federal interests asserted.”
Schall v. Joyce, 885 F.2d 101, 106 (3d Cir. 1989).
In the instant case, all three factors have been met. The first factor is
whether there is a pending state proceeding that is judicial in nature. In the
instant case, the County has filed an action in the Schuylkill County
Pennsylvania Court of Common Pleas to enjoin plaintiff from using its
premises as an adult use or adult entertainment facility. (Doc. 11-2, Def.
The County’s motion raises several other issues but we only address
this issue, as we find it to be dispositive.
Schuylkill County’s Ex. 2, State Court Complaint).3 That lawsuit is based
upon plaintiff’s alleged violation of the terms of the Zoning Ordinance at
issue in the instant suit. Accordingly, the first factor is met.
The second factor is whether the proceeding implicates important
state interests. Courts, including the Third Circuit Court of Appeals, have
held that zoning matters and the regulation of adult establishments are
important state interests. See Renton v. Playtime Theatres, Inc., 475 U.S.
41, 50 (1986) (recognizing that a municipality has a substantial interest in
regulating the location of adult motion picture theaters); Lui v. Commission,
Adult Entertainment, 369 F.3d 319, 323 (3d Cir. 2004) (indicating that a
state has “valid and important interest in regulating the location and effect
on the community of adult entertainment establishments[.]”). Thus,
because this case relates to zoning of adult uses, the second factor is met.
The third factor to examine is whether the state proceeding provides
adequate opportunity for the plaintiff to raise its constitutional challenges.
In the instant case, there is no doubt that the plaintiff could raise its
constitutional challenges to the Zoning Ordinance in the state court.
Accordingly the third fact is met.
Because all three factors of the Younger abstention doctrine are met,
Defendant Schuylkill County filed the state court action in July of
2011, approximately two months after the plaintiff filed the instant action.
Whether the state or federal cause of action was filed first does not matter
in our analysis. We examine, rather, whether any “proceedings of
substance” have taken place in the federal case by the time the state court
proceeding began. Hicks v. Miranda, 422 U.S. 332, 349 (1975). Here, no
proceedings of substance occurred before the filing of the state court
action. No action had been taken except the filing of the complaint.
Defendant Schuylkill County filed the instant motion to dismiss on the
same day as it filed the state court complaint.
the court will abstain from hearing the instant case and grant the County’s
motion to dismiss.4
Based upon the foregoing, the defendants’ motions to dismiss will be
granted. An appropriate order follows.
Plaintiff argues that an exception to the Younger doctrine applies.
The exception applies where the ordinance at issue is unconstitutional on
its face. See Kugler v. Helfant, 421 U.S. 117, 125 n.4 (1975) (indicating
that an exception exists where a statute is “flagrantly and patently violative
of express constitutional prohibitions in every clause, sentence and
paragraph, and in whatever manner and against whomever an effort might
be made to apply it.”). It does not appear, however, from our review of the
pleadings that the Zoning Ordinance is unconstitutional on its face. The
ordinance does not provide an explicit ban on adult uses, it merely limits
them to certain areas and requires that they obtain a special exception.
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
DUTCHMEN MX PARK, LLC,
AND NOW, to wit, this 23rd day of September 2011, it is hereby
ORDERED as follows:
1) Defendant Schuylkill County’s motion to dismiss (Doc. 10) is
2) Defendant Washington Township’s motion to dismiss (Doc. 19) is
The Clerk of Court is directed to close this case.
BY THE COURT:
s/ James M. Munley
JUDGE JAMES M. MUNLEY
United States District Court