Wenk et al v. O'Reilly et al
Filing
96
OPINION AND ORDER denying 63 Motion to Dismiss. Signed by Judge Algenon L. Marbley on 9/13/2013. (cw)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
PETER WENK, et al.
Plaintiffs,
v.
EDWARD O’REILLY, et al.
Defendants.
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Case No. 2:12-CV-474
JUDGE ALGENON L. MARBLEY
Magistrate Judge Kemp
OPINION & ORDER
I. INTRODUCTION
This matter is before the Court on the Defendants’ Motion to Dismiss (the “Motion”)
Plaintiff’s Complaint. For the reasons stated below, the Motion is DENIED.
II. BACKGROUND
For the purposes of this Motion, this Court largely adopts Plaintiffs’ statement of facts
because Plaintiffs, as non-movants, are entitled to favorable inferences at this stage. Plaintiffs in
this case are Peter and Robin Wenk (“Plaintiffs”). Plaintiffs are husband and wife, and are
parents to three daughters. One of their daughters, M.W., is 17 years old and is a student at
Grandview Heights City Schools.
There are two defendants remaining in this case, both employees of Grandview Heights
City Schools (“Grandview Schools”). Edward O’Reilly is the Superintendent (the
“Superintendent”), and Dr. Nancy Schott is the Director of Pupil Services (the “Director”).1
Plaintiff has sued each of Defendants in their individual capacities.
1
Three other defendants in the original Complaint—Karla Hayes and Chris Sidon, both teachers, and Principal
Dawn Sayre—have been dismissed from the action.
M.W. receives special educational services from Grandview Schools. Before the 20112012 school year, Plaintiffs met with representatives of the school to set goals for M.W. for the
coming year.2 As the school year began, Plaintiffs became concerned that Grandview Schools
had departed from M.W.’s educational and social goals as discussed at the meeting. Plaintiffs
met with Principal Dawn Sayre (the “Principal”) and the Director on September 2, 2011, to
address those concerns. When neither the Principal nor the Director took any action in response
to that meeting, Plaintiffs contacted the Superintendent regarding their concerns. The
Superintendent refused to involve himself, however, and stated that he would affirm the
decisions taken by his subordinates. Subsequently, Plaintiffs voiced their concerns to the
Grandview Board of Education President, Katherine Lithgow. Lithgow also refused to become
involved and redirected the Plaintiffs to the Superintendent.
After Plaintiffs’ efforts to obtain additional educational services for their daughter were
unsuccessful, Plaintiffs contacted attorney Sue Tobin at the Ohio Legal Rights Center for
assistance. On October 13, 2011, Plaintiffs informed the Director that they had retained an
attorney and requested a meeting. The Director discouraged Plaintiffs from involving an
attorney and the Plaintiffs agreed to a meeting without the attorney. This second meeting with
the Principal and the Director occurred on October 19, 2011.
A hostile environment permeated the second meeting and, at one point, the Principal
began shouting at Plaintiffs. The meeting ended shortly thereafter. After that meeting, Plaintiff
spoke again with Lithgow of the Grandview Board of Education. Plaintiffs expressed their
concern that Plaintiffs’ relationship with the Principal and Director had severely deteriorated and
2
Every year M.W. has attended Grandview Schools, Plaintiffs have met with representatives of Grandview Schools
before the school year began to set goals for M.W. for the coming year.
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advised Lithgow that Plaintiffs had again contacted an attorney. Lithgow again declined to
become involved, but she informed the Superintendent that Plaintiff had contacted her.
Unbeknownst to Plaintiffs, Karla Hayes—a teacher in Grandview Schools—had for
some time been documenting allegations of abuse against Plaintiffs. This documentation
included, inter alia, statements attributed to M.W. and her parents which Plaintiffs maintain they
had never made and which were not correct. On October 24, 2011, Hayes communicated these
allegations of abuse to the Principal and the Director. The Principal and the Director then
solicited more allegations regarding Plaintiffs from Hayes and another teacher, Chris Sidon.
Hayes and Sidon provided the Principal and the Director with numerous allegations against
Plaintiffs. The Principal and the Director informed the Superintendent that they were gathering
these allegations and the Superintendent, allegedly with knowledge that the allegations were
false, approved the Principal’s and the Director’s conduct. Plaintiffs assert that both
Defendants—the Director and the Superintendent—knew that the accusations of abuse were
patently false or that the accusations painted the Plaintiffs’ family in a false light. Plaintiffs
contend that Defendants knowingly gathered false allegations against them in order to intimidate
Plaintiffs so that they would not pursue their grievances regarding M.W.’s education services.
On November 17, 2011, Plaintiffs met again with the Principal and the Director.3 The
next day, with the knowledge and approval of the Superintendent, the Director contacted
Franklin County Children Services (“FCCS”) and alleged that Plaintiffs were responsible for
abuse and medical neglect of M.W. FCCS notified the Grandview Heights Police Department of
the allegations on November 18, 2011. Grandview Police opened an investigation into the
allegations. Plaintiffs did not learn of the allegations until November 21, 2011, when a
caseworker from FCCS appeared at their home and requested interviews. Plaintiffs submitted to
3
Other members of the Grandview Schools staff were also present at this meeting on November 17, 2011.
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the interviews and M.W. was also interviewed. Plaintiffs retained a lawyer to assist them in
responding to the FCCS investigation.
Shortly before December 25, 2011, Plaintiffs were contacted by Detective Harper of the
Grandview Police. Detective Harper informed Plaintiffs that the Department had opened a
criminal investigation into abuse allegations against Plaintiffs.
On January 5, 2012, FCCS notified Plaintiffs that the investigation had been closed and
the allegations deemed “unsubstantiated.” Even after FCCS closed the investigation, however,
Defendants continued to make allegations against Plaintiffs in connection with the Grandview
Police investigation. Detective Gillespie from the Grandview Police contacted Plaintiffs about
the additional allegations. Over three months later, on April 10, 2012, Plaintiffs were informed
that the Grandview Police had closed its investigation of the allegations. No charges were filed.
By the summer of 2012, Plaintiffs had begun to suspect that Karla Hayes, a Grandview
teacher, was one of the sources of the allegations. In or around July of 2012, Plaintiffs learned
that the Superintendent had assigned Hayes as M.W.’s primary teacher for the coming school
year. Plaintiffs retained the services of a child advocate to express to the Superintendent their
objections to Hayes having contact with M.W. The Superintendent, however, refused to place
M.W. with a different teacher. Later in the school year, Plaintiffs acquired a copy of the
documentation of allegations by Hayes which had led to the FCCS and Police investigations.
Plaintiffs again, through their advocate, tried to have M.W. reassigned to a different teacher. The
Superintendent, knowing that Ms. Hayes had documented numerous accusations against
Plaintiffs for nearly two years and that FCCS and the Grandview Police had found the
accusations to be unfounded, refused to reassign M.W.
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Plaintiffs filed this suit on June 4, 2012. On January 23, 2013, Plaintiffs filed an
Amended Complaint. (Doc. 56) The Amended Complaint contains approximately 40
specifically plead facts and states two causes of action. The first claim is that Defendants
retaliated against Plaintiffs for exercising their First Amendment and Fourteenth Amendment
rights, in violation of 42 U.S.C. §1983. The second claim is that the Superintendent undertook
this unlawful retaliation with malice toward Plaintiffs and in reckless disregard of the law.
Defendants move to dismiss Plaintiffs’ Amended Complaint in its entirety. The Motion to
Dismiss has been fully briefed and is ripe for adjudication.
III. STANDARD OF REVIEW
A motion to dismiss under Rule 12(b)(6) is designed to test “whether a cognizable claim
has been pleaded in the complaint.” Scheid v. Fanny Farmer Candy Shops, Inc., 859 F.2d 434,
436 (6th Cir. 1988). In considering such a motion, the Court is limited to evaluating whether a
plaintiff's complaint sets forth allegations sufficient to make out the elements of a cause of
action. Windsor v. The Tennessean, 719 F.2d 155, 158 (6th Cir. 1983). Dismissal
under Rule 12(b)(6) streamlines litigation by “dispensing with needless discovery and factfinding” on claims that are legally untenable in the first place. See Neitzke v. Williams, 490 U.S.
319, 326-27 (1989).
All factual allegations made by a plaintiff are deemed admitted and ambiguous
allegations must be construed in her favor. Murphy v. Sofamor Danek Gp., Inc., 123 F.3d 394,
400 (6th Cir. 1997). Although “a complaint need not contain ‘detailed’ factual allegations, its
‘[f]actual allegations must be enough to raise a right to relief above the speculative level on the
assumption that all the allegations in the complaint are true.’” Ass'n of Cleveland Fire Fighters
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v. City of Cleveland, Ohio, 502 F.3d 545, 548 (6th Cir. 2007) (quoting Bell Atl. Corp. v.
Twombly, 550 U.S. 544 (2007)).
This liberal standard of review, however, does require more than a bare assertion of legal
conclusions. Allard v. Weitzman, 991 F.2d 1236, 1240 (6th Cir. 1993) (citation omitted). Under
federal pleading requirements, a plaintiff's complaint must include “a short and plain statement
of the claim showing that the pleader is entitled to relief.” See Fed R. Civ. P. 8(a)(2). The short
and plain statement must “give the defendant fair notice of what plaintiff's claim is, and the
grounds upon which it rests.” Id. A complaint must contain either direct or inferential
allegations with respect to all the material elements necessary to sustain a recovery under some
viable legal theory. Id. (citations omitted).
A somewhat different pleading standard applies to a § 1983 conspiracy claim within a
complaint. Although a plaintiff may assert a conspiracy through circumstantial evidence, “[i]t is
well-settled that conspiracy claims must be pled with some degree of specificity and that vague
and conclusory allegations unsupported by material facts will not be sufficient to state a claim
under § 1983.” Spadafore v. Gardner, 330 F.3d 849, 854 (6th Cir. 2003) (quoting Gutierrez v.
Lynch, 826 F.2d 1534, 1538 (6th Cir. 1987)); accord Farhat v. Jopke, 370 F.3d 580, 599 (6th
Cir. 2004). The pleading standard that applies to § 1983 conspiracy claims is “relatively strict.”
Fieger v. Cox, 524 F.3d 770, 776 (6th Cir. 2008).
IV. LAW & ANALYSIS
For a claim of retaliation made pursuant to § 1983 to survive a motion to dismiss, “the
plaintiff must show that (1) a person; (2) acting under color of state law; (3) deprived him of his
rights secured by the United States Constitution or its laws.” Abdulsalaam v. Franklin County
Board of Commissioners, 637 F.Supp.2d 561, 574 (S.D. Ohio 2009). Defendants do not dispute
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that they are persons who were acting under color of state law. Thus, this Court must determine
whether Defendants’ alleged actions would, if proved, constitute a deprivation of Plaintiffs’
rights under the United States Constitution or its laws.
Plaintiffs allege that Defendants violated Plaintiffs’ rights under the First Amendment to
the United States Constitution by retaliating against Plaintiffs for exercising those rights. A First
Amendment retaliation claim has three elements:
(1) The plaintiff was engaged in a constitutionally protected activity;
(2) the defendant’s adverse action caused the plaintiff to suffer an injury that would likely
chill a person of ordinary firmness from continuing to engage in that activity; and
(3) the adverse action was motivated at least in part as a response to the exercise of the
plaintiff’s constitutional rights.
Jenkins v. Rock Hill Local School Dist., 513 F.3d 580, 585-86 (6th Cir. 2008).
A. Constitutionally Protected Activity
With regard to whether a plaintiff was engaged in constitutionally protected activity, the
Sixth Circuit’s decision in Jenkins is instructive. In that case, two mothers of students with
diabetes filed § 1983 suits against school district officials, asserting First Amendment retaliation
claims. 513 F.3d at 583-85. The plaintiffs alleged that school officials had retaliated against
them in response to complaints and criticisms lodged by the parents at the school officials and
their handling of the special needs of the diabetic students. Id. On review of the district court’s
grant of summary judgment for the defendants, the Sixth Circuit explicated the “public concern
test,” finding that the district court “incorrectly held that [the] speech was not constitutionally
protected because it did not touch on a matter of public concern.” Id. at 586. Rather, the court
noted, the “public concern test” is intended to balance the interests of government employees in
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speaking freely, and those of the State in promoting efficiency in public service. Id. To achieve
this, the test ensures that speech of a government employee is constitutionally protected if it
touches upon a matter of public concern. Id. (citing Connick v. Myers, 461 U.S. 138, 154).
While the public concern test is invoked in certain situations analogous to public
employment, where free speech rights must be balanced against effective management of a
government entity, the Sixth Circuit made clear that the test does not apply to First Amendment
retaliation claims made against government officials by private citizens. Id. at 587 (citing Gable
v. Lewis, 201 F.3d 769 (6th Cir. 2000)). The panel reasoned that “the right to criticize public
officials is clearly protected by the First Amendment” and observed that the defendant was
unable to produce “any case from the Supreme Court or [the Sixth Circuit] that parents
criticizing school officials is off-limits when the speech is not about matters of public concern.”
Id. at 588. In fact, “the right to criticize public officials is clearly protected by the First
Amendment.” Id. (citing Bloch v. Ribar, 156 F.3d 673, 678 (6th Cir. 1998)).
Here, Defendants grudgingly concede that Jenkins stands for the proposition that “certain
complaints made to school officials may be constitutionally protected,” but assert that “Plaintiffs
did not provide sufficient allegations in the Amended Complaint to put Defendants on notice of
what activity was supposedly constitutionally protected.” (Defendants’ Reply Brief, Doc. 73 at
3.) While Defendants will no doubt dispute Plaintiffs’ characterization of the events which led to
this action being filed, Plaintiffs set forth their factual account in a clear and coherent manner in
the Amended Complaint. Plaintiffs held multiple meetings with Defendants to complain about
the education Grandview Schools provided M.W. and to seek additional educational services.
The fact that Plaintiffs complaints touched on issues governed by the Individuals with
Disabilities Education Act (the “IDEA”), 20 U.S.C. 1400 et seq., does not somehow convert this
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§ 1983 suit into an action under the IDEA, nor does it alter the fact that Plaintiffs made a
complaint to school officials for which school officials allegedly retaliated.
Defendants state that they cannot decipher from the Amended Complaint whether
Plaintiffs are alleging the protected conduct was criticism of public officials or attempting to
secure additional educational services for M.W. The distinction Defendants attempt to make is
illusory. Plaintiffs’ complained to Defendants about the education M.W. was receiving. Such a
complaint is, de facto, criticism of the school and its officials. If Plaintiffs were not critical of
Defendants’ decisions regarding M.W.’s education they would not have complained. Of course,
Plaintiffs’ complaints were delivered along with Plaintiffs’ proposals for improving M.W.’s
education. The fact that Plaintiffs had ideas about what additional services could assist M.W.
does not alter the fact that Plaintiffs offered those suggestions in order to remedy the Defendants’
actions, of which Plaintiffs had been critical. Defendants’ argument implies that if Plaintiffs had
merely criticized them for their handling of M.W.’s education, without attempting to offer
positive suggestions, that the criticism would be constitutionally protected, but that
simultaneously making suggestions for extra services removes constitutional protection from
Plaintiffs’ complaints. Defendants’ suggestion is unsupported by either logic or case law.
Defendants have not identified a case in the Sixth Circuit in which a parent’s criticism of
or complaint to school officials was not found to be constitutionally protected. This Court finds
that the allegations stated in the Amended Complaint sufficient to identify the constitutionally
protected activity in which Plaintiffs claimed to have engaged. Furthermore, under the law of
the Sixth Circuit, Plaintiffs’ complaints to school officials were constitutionally protected.
Plaintiffs have, thus, satisfied the first element of a claim for First Amendment retaliation.
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B. Defendants’ Adverse Action and Plaintiffs’ Injury
The second element of a claim for First Amendment retaliation is that “the defendant’s
adverse action caused the plaintiff to suffer an injury that would likely chill a person of ordinary
firmness from continuing to engage in that activity.” Jenkins, 513 F.3d at 585-86. Defendants
discuss a number of Sixth Circuit cases in which no adverse action was found, but they largely
ignore the adverse action in Jenkins, the most analogous case. The panel in Jenkins held that it
was evident the plaintiff satisfied the adverse action elements because “a jury could conclude
[defendant’s] alleged actions, dismissing [plaintiff’s child] from school, being involved in
making a false report to Children Services, and refusing to provide home-school education
through the services of a tutor, would chill a person of ordinary firmness from engaging in
speech.” Id., at 588-89. While the Jenkins panel listed all of defendant’s allegedly retaliatory
acts, it did not hold that an adverse action must consist of all the acts listed. Rather, the Jenkins
court listed a number of acts which could form the basis for a jury to find an adverse action.
While Defendants correctly point out that M.W. was not dismissed from school, as was
plaintiff’s child in Jenkins, this Court finds that the false report to FCCS alone would chill a
person of ordinary firmness from engaging in speech. FCCS has the power to remove a child
from the custody of her parents and the Court can imagine few threats more chilling to a parent.
If this Court were to find that Defendants’ alleged actions were not adverse, any parent who
complained to her child’s school could be subjected to a false report to child services without any
consequences for a school official making the false report. Needless to say, the purpose of child
services agencies is not to deter parents from advocating for their children’s best interests.
Defendants’ argument that “Plaintiffs have not alleged that the notification to Franklin
County Children Services or the Police Department led to the deprivation of any constitutional
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right” misses the point. The alleged violation of Plaintiffs’ rights is not that the FCCS
investigation; the alleged violation of Plaintiffs’ rights is the chilling effect on Plaintiffs’ First
Amendment rights Defendants attempted to produce by making the false report to FCCS.
Defendants’ acts, as alleged by Plaintiffs, send a clear message: if Plaintiffs complain to or
criticize school officials, school officials will abuse their authority by having Plaintiffs harassed
with baseless investigation and, potentially, prosecution. The very fact that Plaintiffs filed this
suit demonstrates that Defendants’ alleged acts did not produce the chilling effect on Plaintiffs’
speech that Defendants allegedly sought to achieve. That failure would not, however, exonerate
Defendants if Plaintiffs’ evidence ultimately supports the allegations. When state officials
conspire to prevent a citizen from exercising her rights under the First Amendment, but she
thwarts the government’s efforts through determination to make herself heard, her fortitude does
not legally prejudice her complaint pursuant to § 1983 and she remains entitled to relief.
C. Motivated as a Response to Plaintiffs’ Exercise Constitutional Rights
The Court construes Defendants’ argument that there is no alleged causal connection
between the adverse action and Plaintiffs’ alleged injury as an argument that Plaintiffs have
failed to satisfy the third element of a First Amendment retaliation claim. Defendants’ argument,
again, is misplaced. Plaintiffs have alleged such a connection: Defendants knowingly made a
false report to deter Plaintiffs from continuing to make complaints regarding M.W.’s education.
If, as Plaintiffs allege, Defendants knowingly filed a false report with FCCS to prevent Plaintiffs
from pursuing their complaints, Defendants’ act was motivated by Plaintiffs’ complaints.
Plaintiffs also allege that Defendants only began gathering false reports after the Plaintiffs
complained multiple times and that it was the day after one such meeting that Defendants called
FCCS to report the false allegations. Defendants point out that in Jenkins the plaintiffs produced
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specific statements from the defendants that showed a causal connection. What Defendants fail
to take into account, however, is that Jenkins was an appeal from a grant of summary judgment;
the plaintiffs had already conducted discovery and put evidence in the record. On a motion to
dismiss, courts do not consider evidence, only whether the facts as pled would legally support a
claim. Here, Plaintiffs have alleged that Defendants acts were motivated by Plaintiffs’ exercise
of their rights. Whether Plaintiffs are ultimately able to prove Defendants acts were motivated
by Plaintiffs’ exercise of their rights is appropriately considered only after discovery.
The Court, thus, finds that Plaintiffs have satisfied the third element of a claim for First
Amendment retaliation.
D. Qualified Immunity
While a defendant properly raises the defense of qualified immunity in a motion to
dismiss, only if “the plaintiff’s allegations [do not] state a claim of violation of clearly
established law” is a defendant “pleading qualified immunity [] entitled to dismissal before the
commencement of discovery.” Mitchell v. Forsyth, 472 U.S. 511, 526 (1985).
Defendants’ argument that the Amended Complaint fails to state a claim of violation of
clearly established law rests on their other argument, already rejected by this Court, that the
Amended Complaint failed to identify the constitutionally protected activity in which Plaintiffs
engaged. This Court found above that the multiple complaints Plaintiffs presented to Defendants
regarding M.W.’s education constitutes criticism of public officials. As the Sixth Circuit has
long held, “[t]he right of an American citizen to criticize public officials and policies and to
advocate peacefully ideas for change is ‘the central meaning of the First Amendment.’” Glasson
v. City of Louisville, 518 F.2d 899, 904 (6th Cir. 1975) (quoting New York Times v. Sullivan, 376
U.S. 254, 273 (1964)). Plaintiffs have alleged they were subject to retaliation because of their
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complaints to school officials about the acts of school officials. If proved, that allegation would
be a violation of clearly established law under the First Amendment.
E. Pleading of § 1983 Conspiracy
In the Sixth Circuit, to plead successfully a claim of conspiracy pursuant to § 1983, a
plaintiff must allege “that there was a single plan, that the alleged coconspirator shared in the
general conspiratorial objective, and that an overt act was committed in furtherance of the
conspiracy that caused injury to the complainant.” Hooks v. Hooks, 771 F.2d 935, 944 (6th Cir.
1985). Furthermore, “[c]onspiracy claims must be pled with some degree of specificity and . . .
vague and conclusory allegations unsupported by material facts will not be sufficient to state
such a claim.” Center for Bio-Ethical Reform, Inc. v. City of Springboro, 477 F.3d 807, 832 (6th
Cir. 2007 (quoting Gutierrez v. Lynch, 826 F.2d 1534, 1538-39 (6th Cir. 1987).
The background section of this Opinion lays out a lengthy chain of specific events with
the participants specifically identified, all of which are drawn from Plaintiffs’ Amended
Complaint. If all the Plaintiffs had written in the Amended Complaint were “vague and
conclusory allegations unsupported by material facts,” the Court would have had difficulty
writing over 1,000 words on the factual allegations in the Amended Complaint. The Amended
Complaint plainly alleges that the Director gathered false allegations with the authorization of
the Superintendent and that the Superintendent authorized the Director to make a report of false
allegations to FCCS, all with the purpose of deterring Plaintiffs from making further complaints
about M.W.’s education. The Court has difficulty imagining in what way that allegation could
be construed as not being an allegation of a single plan. Defendants state that “[t]here is no
indication that the group of Defendants contemplated making a report to FCCS . . . or that the
group otherwise planned to use any information shared to injure Plaintiffs.” (Defendants’ Reply
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Brief, Doc. 73, at 9.) Plaintiffs allege precisely that Defendants contemplated making a report to
FCCS in order to injure Plaintiffs. If, by “no indication,” Defendants mean that there is no
evidence, that argument is not before this Court on Defendants’ Motion to Dismiss. Whether
Plaintiffs have evidence to support their allegations is perhaps an issue for a motion for summary
judgment. It is sufficient that Plaintiffs allege that the Director collected false reports knowing
of their falsity and the Superintendent both authorized her to collect the reports and authorized
her to make a report to FCCS. In short, the single plan Plaintiffs allege is a plan to make a false
report of abuse to FCCS and the conspiratorial objective Plaintiffs allege is the objective for the
FCCS investigation to intimidate Plaintiffs so that they would not continue to complain to school
officials about M.W.’s education. Finally, the overt act in furtherance of the conspiracy that
Plaintiffs allege is the false report to FCCS.
Plaintiffs have, thus, satisfied all three pleading requirements for a conspiracy claim, and
have done so with sufficient specificity to survive a motion to dismiss.
V. CONCLUSION
Plaintiffs’ Amended Complaint alleges specific facts which, if proved, would support a §
1983 claim for violation of Plaintiffs’ rights under the First Amendment. For the foregoing
reasons, Defendants’ Motion to Dismiss is hereby DENIED.
IT IS SO ORDERED.
/s/ Algenon L. Marbley
ALGENON L. MARBLEY
UNITED STATES DISTRICT JUDGE
DATED: September 13, 2013
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