REILLY v. EAST COCALICO TOWNSHIP et al

Filing 39

MEMORANDUM (Order to follow as separate docket entry) (eo)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
BRANDON REILLY,

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Plaintiff,
v.
LEBANON COUNTY, et. al.,
Defendants.

1:16-cv-1469
Hon. John E. Jones III

MEMORANDUM
December 21, 2016
Plaintiff Brandon Reilly brings the above-captioned action pursuant to
allegations of a deprivation of Fourteenth Amendment rights by Defendants,
Lebanon County and its Sheriff Bruce Klingler. Presently pending before the Court
is the Defendants’ motion to dismiss (the “Motion”) (Doc. 17), seeking to dismiss
both counts of Plaintiff’s amended complaint. (Doc. 9). The Motion has been fully
briefed (Docs. 18, 32, 34) and is therefore ripe for our review. For the reasons that
follow, the Motion shall be granted.
I.

BACKGROUND
In accordance with the standard of review applicable to a motion to dismiss,

the following facts are derived from Plaintiff’s amended complaint and viewed in
the light most favorable to him.

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On July 3, 2014 around 2:30a.m., Plaintiff Brandon Reilly was sitting
outside the Reamstown Athletic Association building in Reamstown,
Pennsylvania. (Doc. 9, ¶ 6) (see also Doc. 17, att. 1). East Cocalico Township
Police Officers arrived at the building after receiving reports of disorderly conduct
from within. (Doc. 9, ¶ 7). Plaintiff was not inside the building when the alleged
disorderly conduct took place. (Id., at ¶ 8). The officers approached Plaintiff and
asked him what he was doing. (Id., at ¶ 9). Plaintiff told the officers that he was
waiting for a friend to pick him up. (Id., at ¶ 10). Without conducting any
meaningful investigation, the officers demanded Plaintiff to get in the police car
and took him to the police station. (Id., at ¶¶ 11-12). There was no investigation
conducted at the police station and Plaintiff was picked up by a friend. (Id., at ¶
12).
About a week later, Plaintiff received a citation for public drunkenness in the
mail. (Id., at ¶ 14). He attended a hearing and paid a fine for public drunkenness.
(Id., at ¶ 15). During the hearing, a police officer admitted to making false
statements in the citation and that his only basis for the citation was that the
Plaintiff repeated himself. (Id.).

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Several months later, around November 2014, Plaintiff was informed by his
employer that the Lebanon County1 Sherriff was revoking his concealed carry
license due to the public drunkenness citation. (Id., at ¶ 16). Plaintiff called the
Sheriff and asked why his permit was being revoked and was told that the East
Cocalico Township Police had directed him to do so. (Id., at ¶ 17). Plaintiff asked
the Sheriff if there was a way to challenge the revocation, and he said no. (Id., at ¶
18). Plaintiff was never contacted in writing that his concealed carry permit was
being revoked. (Id., at ¶ 20). The Lebanon County Sheriff did not conduct a
meaningful background check before revoking the Plaintiff’s concealed carry
permit. (Id.). It was a custom and practice of the Lebanon County Sheriff’s office
to revoke concealed gun carry permits without conducting meaningful
investigation. (Id., at ¶ 22). As a result of the revocation, the Plaintiff suffered
financial loss, the loss of his permit, and severe emotional distress. (Id., at ¶ 21).
Plaintiff filed an amended complaint on June 14, 2016 bringing two counts
against the Defendants. (Doc. 9). In Count I, Plaintiff alleges that the Defendants
violated his substantive and procedural due process rights under the Fourteenth
Amendment.2 (Id., at ¶¶ 23-27). Count II is labeled only as “Monell”, though the
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Plaintiff states in his amended complaint that the “Lebanon Valley Sheriff” was revoking his
license. (Doc. 9, ¶ 16). We assume that Plaintiff intended to say the Lebanon County Sherriff, as
Lebanon Valley Sherriff does not exist.
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Count I references both the Fourth and Fourteenth Amendments for the deprivation of his
substantive and due process rights. (Doc. 9, ¶ 27). We assume that Plaintiff inadvertently
included the Fourth Amendment, as the Fourth Amendment contains no due process protections
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Court recognizes this as a reference to Monell v. Department of Social Services,
436 U.S. 658 (1978), and alleges that it was the custom and policy of the
Defendants that deprived the Plaintiff of his rights. (Id., at ¶¶ 28-30). While
Plaintiff’s claim does not delineate his Counts as such, the Court assumes that
Count I is against Defendant Bruce Klingler and Count II is against Lebanon
County, both for claims of deprivation of procedural and substantive due process.
Defendants filed a motion to dismiss on July 22, 2016 (Doc. 17) and a brief in
support on August 1, 2016. (Doc. 18). After several extensions, Plaintiff filed a
brief in opposition on October 10, 2016. (Doc. 32). Defendants filed a reply on
October 14, 2016. (Doc. 34). Plaintiff filed a motion for leave to file a sur-reply on
November 1, 2016, but provided the Court with no argument or brief in support of
that motion. (Doc. 35). We denied Plaintiff’s motion to file a sur-reply by Order
dated December 1, 2016. (Doc. 38). For the reasons that follow, we shall grant the
Defendants’ motion to dismiss.
II.

STANDARD OF REVIEW
In considering a motion to dismiss pursuant to Rule 12(b)(6), courts “accept

all factual allegations as true, construe the complaint in the light most favorable to
the plaintiff, and determine whether, under any reasonable reading of the

and Plaintiff’s complaint does not allege any Fourth Amendment violation. To the extent that
Plaintiff is asserting a Fourth Amendment claim, that claim is dismissed because there are no
allegations in support of it.
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complaint, the plaintiff may be entitled to relief.” Phillips v. Cty. of Allegheny, 515
F.3d 224, 231 (3d Cir. 2008) (quoting Pinker v. Roche Holdings, Ltd., 292 F.3d
361, 374 n.7 (3d Cir. 2002)). In resolving a motion to dismiss pursuant to Rule
12(b)(6), a court generally should consider only the allegations in the complaint, as
well as “documents that are attached to or submitted with the complaint, . . . and
any matters incorporated by reference or integral to the claim, items subject to
judicial notice, matters of public record, orders, [and] items appearing in the record
of the case.” Buck v. Hampton Twp. Sch. Dist., 452 F.3d 256, 260 (3d Cir. 2006).
A Rule 12(b)(6) motion tests the sufficiency of the complaint against the
pleading requirement of Rule 8(a). Rule 8(a)(2) requires that a complaint contain 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.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)
(quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). While a complaint attacked
by Rule 12(b)(6) motion to dismiss need not contain detailed factual allegations, it
must contain “sufficient factual matter, accepted as true, to ‘state a claim to relief
that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). To
survive a motion to dismiss, a civil plaintiff must allege facts that “raise a right to
relief above the speculative level….” Victaulic Co. v. Tieman, 499 F.3d 227, 235
(3d Cir. 2007) (quoting Twombly, 550 U.S. at 555). Accordingly, to satisfy the

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plausibility standard, the complaint must indicate that defendant’s liability is more
than “a sheer possibility.” Iqbal, 556 U.S. at 678. “Where a complaint pleads
facts that are ‘merely consistent with’ a defendant’s liability, it ‘stops short of the
line between possibility and plausibility of entitlement to relief.’” Id. (quoting
Twombly, 550 U.S. at 557).
Under the two-pronged approach articulated in Twombly and later
formalized in Iqbal, a district court must first identify all factual allegations that
constitute nothing more than “legal conclusions” or “naked assertions.” Twombly,
550 U.S. at 555, 557. Such allegations are “not entitled to the assumption of truth”
and must be disregarded for purposes of resolving a 12(b)(6) motion to dismiss.
Iqbal, 556 U.S. at 679. Next, the district court must identify “the ‘nub’ of the …
complaint – the well-pleaded, nonconclusory factual allegation[s].” Id. Taking
these allegations as true, the district judge must then determine whether the
complaint states a plausible claim for relief. See id.
However, “a complaint may not be dismissed merely because it appears
unlikely that the plaintiff can prove those facts or will ultimately prevail on the
merits.” Phillips, 515 F.3d at 231 (citing Twombly, 550 U.S. at 556-57). Rule 8
“does not impose a probability requirement at the pleading stage, but instead
simply calls for enough facts to raise a reasonable expectation that discovery will
reveal evidence of the necessary element.” Id. at 234.

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III.

DISCUSSION

Defendants argue that both counts of Plaintiff’s amended complaint should
be dismissed. Because Count I seems to encompass both a procedural and a
substantive due process claim, Defendants offer arguments in support of dismissal
of Count I for both. We will follow suit and consider Plaintiff’s procedural due
process claim, substantive due process claim, and Monell claim in turn.
a. Procedural Due Process
“To state a claim under § 1983 for deprivation of procedural due process
rights, a plaintiff must allege that (1) he was deprived of an individual interest that
is encompassed within the Fourteenth Amendment's protection of ‘life, liberty, or
property,’ and (2) the procedures available to him did not provide ‘due process of
law.’” Hill v. Borough of Kutztown, 455 F.3d 225, 233–34 (3d Cir. 2006). Plaintiff
does not allege a deprivation of life or a liberty interest; rather, he argues that the
revocation of his concealed carry permit without probable cause constitutes a
deprivation of procedural due process, invoking a property interest. (Doc. 9, ¶ 24).
Defendants argue that Plaintiff’s procedural due process claim must fail because a
Pennsylvania concealed carry license does not represent a property interest subject
to due process protection. Further, Defendants argue that even if a concealed carry
license is a property interest subject to Fourteenth Amendment protection, Plaintiff
was not entitled to a pre-deprivation hearing.

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To determine whether a Pennsylvania concealed carry license constitutes a
property interest subject to protection under the Fourteenth Amendment, we must
assess whether Plaintiff can establish a “legitimate claim of entitlement” to it under
Pennsylvania law. Bd. of Regents of State Colleges v. Roth, 408 U.S. 564, 577
(1972). The Supreme Court offered a definition of property interests within the
context of procedural due process in Board of Regents of State Colleges v. Roth:
Property interests, of course, are not created by the Constitution.
Rather they are created and their dimensions are defined by existing
rules or understandings that stem from an independent source such as
state law—rules or understandings that secure certain benefits and that
support claims of entitlement to those benefits
Id. The Court has further stated that “cases recognize that a benefit is not a
protected entitlement if government officials may grant or deny it in their
discretion.” Town of Castle Rock, Colo. v. Gonzales, 545 U.S. 748, 756 (2005).
Defendants point to two cases in support of their argument that Plaintiff’s
claim does not assert a protected property interest. Both the Eastern District of
Pennsylvania in Potts v. City Of Philadelphia, 224 F. Supp. 2d 919, 941 (E.D. Pa.
2002) and Judge Kane of our own district in Hain v. DeLeo, 2010 WL 4514315
(M.D. Pa. Nov. 2, 2010) held that a Pennsylvania concealed carry license was not a
protected property interest because of the broad discretion afforded to the City in
granting or denying them.

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Both courts began by looking at the plain language of the Pennsylvania
Uniform Firearm Act, codified at 18 Pa.C.S.A § 6109. Before granting a license,
the sheriff must: “(1) investigate the applicant's record of criminal conviction; (2)
investigate whether or not the applicant is under indictment for or has ever been
convicted of a crime punishable by imprisonment exceeding one year; (3)
investigate whether the applicant's character and reputation are such that the
applicant will not be likely to act in a manner dangerous to public safety; (4)
investigate whether the applicant would be precluded from receiving a license
under [other subsections of the UFA]; and (5) conduct a criminal background,
juvenile delinquency and mental health check....” 18 Pa.C.S.A. § 6109(d). Section
e(1)(i) prohibits the issuing of a license to an “individual whose character and
reputation is such that the individual would be likely to act in a manner dangerous
to public safety.” 18 Pa.C.S.A. § 6109(e)(1)(i). The statute further specifies that the
“[a] license to carry firearms may be revoked by the issuing authority for good
cause” or if any of the reasons stated in e(1) become applicable after issuance. 18
Pa.C.S.A. § 6109(i).
Like our fellow courts did, we recognize that the plain language of the
statute “invests the sheriff with significant discretion in granting or revoking a
[concealed carry license] based on good cause and character determinations.”
Hain, 2010 WL at *6. Further, Pennsylvania courts have explicitly stated that the

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Pennsylvania UFA grants discretionary authority to sheriffs in the issuance and
revocation of licenses:
“[T]his Court has held that the legislature intended in Section 6109 of
the Act to confer discretion on sheriffs, empowering them to exercise
judgment in applying the Act's standards to determine if applicants
should be licensed. That principle applies also to the sheriff's
determination of “good cause” for revocation.”
Harris v. Sheriff of Delaware County, 675 A.2d 400, 401 (Pa.Cmwlth.1996).
We agree with the court in Potts that “both the plain language of section
6109 of the Uniform Firearms Act and case law interpreting this provision make
clear that the licensing body, here the City, enjoys broad discretion in both issuing
and revoking firearm licenses.” Potts, 224 F. Supp. 2d at 941. Such broad
discretion precludes a finding of a property interest under the Fourteenth
Amendment procedural due process protection. Town of Castle Rock, 545 U.S. at
756.
We note that, while Defendants’ motion relies heavily on Hain and Potts,
the Plaintiff does not address Hain at all and only addresses Potts in regards to his
substantive due process analysis. (Doc. 32, p. 8). In fact, the only argument that we
can find in response to Defendants’ contention that a Pennsylvania concealed carry
license is not a protected property interest is as follows: “[t]hus, even if the permit
itself is not a protected property right (denied). . .” (Id.). Plaintiff also alludes to
Heller saying “especially since Heller has even moreso raised the fundamental

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interests related to personal firearm carry, which, uniquely in Pennsylvania cannot
be afforded without an LTCF (so to transport), and as Plaintiff’s conduct at issue
was unrelated to the LTCF.” (Id.).
Plaintiff’s entire procedural due process argument, which only contains
sixteen sentences, focuses on the need for a pre-deprivation hearing. (Id., at pp. 79). However, because we find that the property interest at stake is not encompassed
within the protection of the Fourteenth Amendment’s procedural due process
protections, we need not consider whether “the procedures available to him did not
provide ‘due process of law.’” Hill, 455 F.3d 225 at 34. Accordingly, we will
dismiss Count I to the extent that it asserts a procedural due process violation.
b. Substantive Due Process
Plaintiff’s substantive due process claim is premised on the revocation of his
concealed carry license “without probable cause nor any cause.” (Doc. 9, ¶ 24).
The Third Circuit has stated that “a substantive due process claim grounded in an
arbitrary exercise of governmental authority may be maintained only where the
plaintiff has been deprived of a ‘particular quality of property interest.’” Indep.
Enterprises Inc. v. Pittsburgh Water & Sewer Auth., 103 F.3d 1165, 1179 (3d Cir.
1997) (quoting DeBlasio v. Zoning Bd. of Adjustment, 53 F.3d 592, 600 (3d
Cir.1995)). Only “fundamental property interests are worthy of substantive due
process protection.” Id., (emphasis in original).

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Plaintiff’s six sentence argument regarding his substantive due process claim
contains only two sentences addressing whether his concealed carry permit
represents a fundamental property interest subject to substantive due process
protection: first, a conclusory statement that “[a] concealed carry permit constitutes
a substantive due process right,” and second, a citation to the proposition that
ownership of property is considered to be a protected property interest. (Doc. 32, p.
9).
Both the Hain and Potts courts found that a Pennsylvania concealed carry
license did not constitute a fundamental property interest worthy of substantive due
process protection. Hain, 2010 WL at *10; Potts, 224 F. Supp. 2d, at 944. Plaintiff
addresses the Potts decision only to point out that it relied on overruled case law
when discussing that non-legislative state action violates substantive due process if
it is arbitrary, irrational, or done so out of improper motive. (Doc. 32, p. 9). He
does not address either courts’ finding that a concealed carry license does not
implicate substantive due process at all.
Plaintiff is in an identical situation as the plaintiff was in Hain. The Hain
plaintiff also relied only on the conclusory allegation that ownership of property is
a protected interest. Hain, 2010 WL at *10. The court quickly pointed out “the
Third Circuit’s longstanding limitation of qualifying property interests ‘to cases
involving real property ownership,’ and its reluctance to expand this category.” Id.

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(quoting Nicholas v. Pennsylvania State Univ., 227 F.3d 133, 141 (3d Cir. 2000)).
The court went on to cite to multiple cases where the Third Circuit has declined to
extend fundamental property interests to include interests beyond real property. Id.
(citing cases rejecting fundamental property interests in veterans’ employment
preference, public contract interests, interest in water and sewer services, receipt of
professional services, interest in lost profits, loss of a bid, breach of a lease, breach
of business relationships, or obtaining maximum return on investment). Indeed, the
Supreme Court has cautioned to use the “utmost care” in expanding the concept of
substantive due process. Collins v. City of Harker Heights, Tex., 503 U.S. 115, 125
(1992). Just as the plaintiff in Hain “failed to offer any basis or authority to suggest
a different result under substantive due process analysis,” the Plaintiff here has
offered the Court no argument in support of inclusion of the license as a
substantive due process property interest. Hain, 2010 WL at *10.
We agree with the courts in Potts and Hain that a Pennsylvania concealed
carry license does not constitute a fundamental property interest subject to
substantive due process protection and, accordingly, shall dismiss Count I insofar
as it asserts a substantive due process claim.
c. Monell Claim
Plaintiff concedes in his brief in opposition that, “if this Honorable Court
finds no constitutional violation then Plaintiff’s Monell cause should likewise fail.”

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Because we find that Plaintiff has not stated a procedural or substantive due
process violation, there is no basis for which to hold Lebanon County liable under
Monell v. Department of Social Services, 436 U.S. 658 (1978). Accordingly, Count
II shall be dismissed.
d. Leave to Amend
While Plaintiff does not specifically ask the Court for leave to amend his
complaint, he devotes a section in his brief in opposition to case law encouraging
courts to grant leave to amend when justice requires and it appears deficiencies can
be corrected. (Doc. 32, pp. 5-6). However, Plaintiff’s claims fail not because of a
deficient complaint, but because his rights asserted are not encompassed within the
Fourteenth Amendment. An amended complaint would therefore be futile. Shane v.
Fauver, 213 F.3d 113, 115 (3d Cir. 2000).
IV.

CONCLUSION

For the foregoing reasons, we shall grant Defendants’ motion to dismiss. A
separate order shall issue in accordance with this ruling.

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