Adamitis v. Borough of Dickson City et al

Filing 24

MEMORANDUM (Order to follow as separate docket entry) re 20 MOTION TO DISMISS Second Amended Complaint. Signed by Honorable A. Richard Caputo on 11/14/17. (dw)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
ANTHONY ADAMITIS,
Plaintiff,

NO. 3:16-CV-0497

v.

(JUDGE CAPUTO)

BOROUGH OF DICKSON CITY, et
al.,
Defendants.
MEMORANDUM
Presently before me is the Motion to Dismiss the Second Amended Complaint
(Doc. 20) filed by Defendants Borough of Dickson City (the “Borough”), Michael
Fedorka (“Fedorka”), Robert Hall (“Hall”), Rose Louryk (“Louryk”), Rick Cesari
(“Cesari”), Jack Horvath (“Horvath”), Jeffrey Kovaleksi (“Kovaleski”), and Barbara
Mecca (“Mecca”) (collectively, where appropriate, “Defendants”). Plaintiff Anthony
Adamitis (“Adamitis” or “Plaintiff”) alleges that Defendants violated his First
Amendment rights after he supported, campaigned, and associated with his wife and
another candidate in their bids for Borough Council in 2015. I previously granted
Defendants’ motion to dismiss Plaintiff’s amended complaint, finding, inter alia, that
Plaintiff failed to allege that Defendants’ action were sufficient to deter a person of
ordinary firmness from exercising his rights. Plaintiff, however, was granted leave to
file an amended pleading, which he did. Because Plaintiff’s Second Amended
Complaint again fails to state a state a violation of his First Amendment rights, I will
grant Defendants’ motion, dismiss Plaintiff’s federal law causes of action, and decline
to exercise supplemental jurisdiction over Plaintiff’s remaining state law claim.
Plaintiff will, however, be given one final opportunity to amend his complaint to
sufficiently state his First Amendment claims.

I. Background
Plaintiff commenced this action against Defendants on March 23, 2016. (See
Doc. 1, generally). After Defendants filed a motion to dismiss the complaint, (see
Doc. 8, generally), Plaintiff filed an amended complaint on May 17, 2016, asserting
claims for “Politically Motivated Harm” (Count I), “First Amendment violation”
(Count II), and declaratory judgment regarding the validity of Borough Ordinance 22016. (See Doc. 10, generally).
On May 31, 2016, Defendants filed a motion to dismiss Plaintiff’s amended
complaint. (See Doc. 11, generally). In resolving Defendants’ motion, I set forth the
facts as alleged by Plaintiff in the amended complaint as follows:
Plaintiff Anthony Adamitis is an elected Tax Collector
for the Borough of Dickson City. Plaintiff was an active
supporter of his wife, Georgia Adamitis, and Paul Kwiec in
their campaign for Borough Council.
Defendants are five current and two former members
of the Council who were politically against Georgia
Adamitis and Paul Kwiec, instead supporting Defendants
Michael Fedorka, John Horvath, Jeffrey Kovaleski, and Rose
Louryk. Defendants were aware of Plaintiff’s support for
and association with Georgia Adamitis and Paul Kwiec in
their campaign for Borough Council.
On May 19, 2015, Georgia Adamitis and Paul Kwiec
won the primary election. The following day, Defendants
took away Plaintiff’s access card to the Borough’s
administrative offices; Plaintiff, however, continues to have
access to the building, where he retrieves his mail and faxes,
if another employee is present in the administrative offices.
Plaintiff was also told to move all tax records out of a
storage area where they had been kept for more than twenty
years.
Sometime in May 2015, Defendants Fedorka, Horvath,
Kovaleski, and Louryk publicly disparaged Plaintiff. They
disclosed personal, private, and incorrect information about
Plaintiff to the public.
Nearly five months later, on October 19, 2015,
Defendant Fedorka, pursuant to Pennsylvania Right-toKnow disclosure laws, requested from Plaintiff “all receipts,
cancelled checks or other forms of payment made to the
Dickson City Tax Collector or his office for fees charged for
duplicates or replacement bills from the year 2011 to
October 17, 2015.” (Id. at ¶ 29). According to Plaintiff, this
2

request was unfounded because Plaintiff, as an elected Tax
Collector, is not subject to the Right-to-Know disclosure
laws.
A month later, in November 2015, both Georgia
Adamitis and Paul Kwiec won the general election. In midDecember, Plaintiff’s computer was allegedly “tampered
with on at least two occasions and his paperwork was
reviewed even though his office was locked.” (Id. at ¶ 31).
That same month, Defendant Hall, pursuant to Right-toKnow laws, sought “a copy of any and all documents,
correspondence sent or received concerning payment, fees or
other instruction on requesting a tax duplicate for the year
2015, 2014, 2013, and 2012.” (Id. at ¶ 32).
Shortly thereafter, on or about December 28, 2015, the
Council passed a motion to seek “submissions to the
Pennsylvania Right To Know Office to AP 2015-2806 and
to take appropriate action to secure the requested material.”
(Id. at ¶ 33). Two days later, Defendant Hall, pursuant to
Right-to-Know laws, again requested from Plaintiff a “copy
of the Dickson City Tax Collector yearly report of total gross
compensation for the years 2011, 2012, 2013, and 2014.”
(Id. at ¶ 35).
Three months later, on March 8, 2016, the Council
passed an ordinance requiring the elected Tax Collector “to
assess and collect $11 for each tax certificate/assessed
property and forward the same to the Borough to be
deposited in the general fund.” (Id. at ¶ 38). The Borough
“will then issue a check to the Tax Collector subject to
withholdings.” (Id.). According to Plaintiff, the ordinance
requires him “to perform his elected position in a more
expensive way to taxpayers and others seeking information
on tax certification duplicates.” (Id. at ¶ 37).
Finally, Plaintiff claims that the Borough ordinance
passed on March 8, 2016 is invalid because, according to the
Pennsylvania Tax Collector’s Manual, any change in
compensation of the Tax Collector must be adopted prior to
the 15th day of February. (Id. at ¶ 40).
In light of the above, Plaintiff instituted the instant
lawsuit (Docs. 1, 10), asserting that Defendants’ actions
constituted a “campaign of harassment” in retaliation for
Plaintiff’s political support for Georgia Adamitis and Paul
Kwiec. (Id. at ¶ 41).
Adamitis v. Borough of Dickson City, No. 16-497, 2017 WL 2633509, at *1-2 (M.D.
Pa. June 16, 2017) (footnote omitted).
In view of these factual averments, I found that Defendants were entitled to
qualified immunity on Plaintiff’s First Amendment claims in Counts I and II of the
3

amended complaint because Plaintiff failed to allege acts giving rise to a cognizable
retaliation claim under 42 U.S.C. § 1983. See id. at *3-6. More particularly, I did not
“find that Defendant’s [sic] acts amounted to a severe and sustained campaign that
constituted an effective deterrent to the exercise of Plaintiff’s rights. Even when
looking at the record in the light most favorable to Plaintiff, the cumulative effect of
the alleged acts by Defendants would not dissuade a person of ordinary firmness from
engaging in First Amendment activities.” Id. at *6. But, Plaintiff was granted leave
to file a further amended complaint. See id. at *7. In granting Plaintiff leave to
amend, he was also directed “to clarify the basis for Count I, entitled ‘Politically
Motivated Harm,’ which appears to be no different from Count II, alleging
retaliation,” because “[b]oth counts rely on the same allegations and seek relief under
the same statute and precedent for the same alleged infringement and injuries. Thus,
it appears that Count I is a mere surplusage.” See id.
Plaintiff filed his Second Amended Complaint on July 7, 2017. (See Doc. 18,
generally). The Second Amended Complaint contains similar factual allegations as
set forth in the amended complaint (as quoted above). (Cf. Doc. 18, generally, with
Doc. 10, generally). In addition, Plaintiff alleges in the Second Amended Complaint,
inter alia:
n.1

[I]t was the entire Council that removed access and
storage. Specifically, the email sent states, “I was
directed by Borough Council to remove the Tax
Collector from access to the Administration Office
immediately.”
...

22.

Specifically, Defendants Michael Fedorka, John
Horvath, Jeffrey Kovaleski, and Rose Louryk put a
flyer together listing Plaintiff’s prescription payment
implying that Plaintiff was somehow ripping off the
government. Moreover, healthcare information is
confidential information that should not be disclosed
to the public. The actual date of publication is not on
the document, but it was distributed after May 8,
2105, but before election day.

n.3

Plaintiff is not an employee of Defendant Dickson
4

City, but disclosing false, confidential healthcare
information is not mere criticism, false accusation or
a verbal reprimand. The harm is far greater since the
public believes the false information that should have
remained private.
...
26.

This action of removing access to administrative
office, which Plaintiff had access for over 10 years,
was not done through a Borough Council vote or
public meeting. Therefore, Defendants are not
protected by legislative immunity.

27.

Plaintiff needs access to the administrative office
since the fax machine and the mail is delivered and
sent from within. He is required to provide duplicate
tax certifications, which the requests come by mail
and fax. Consequently, to remove access to the same
interferes with Plaintiff’s ability to perform the Tax
Collector duties. . . . and this action would deter a
person from exercising [sic]

28.

. . . Again, this was not decided by a majority vote at
a Borough Council, and therefore, legislative
immunity does not apply.

(Doc. 18, ¶¶ 22, 26-28 & n.1, 3).1 Like Plaintiff’s amended complaint, the Second
Amended Complaint again asserts claims for “Politically Motivated Harm” (Count I),
“First Amendment violation” (Count II), and declaratory judgment regarding the
validity of Borough Ordinance 2-2016. (See id., generally).2

1

To the extent that the Second Amended Complaint omits facts that were contained
in Plaintiff’s prior pleading, the omitted allegations are not considered here. See
West Run Student Hous. Assocs., LLC v. Huntington Nat’l Bank, 712 F.3d 165,
171-73 (3d Cir. 2013).

2

Plaintiff, as indicated, was directed to clarify the bases for Counts I and II. See
Adamitis, 2017 WL 2633509, at *7. Plaintiff asserts that Count I sets forth a
political affiliation claim, while Count II states a First Amendment retaliation
cause of action. (See Doc. 18, n.2 (citing Galli v. N.J. Meadowlands Comm’n,
490 F.3d 265, 271 (3d Cir. 2007)). Given the elements of a political patronage
claim, see Galli, 490 F.3d at 271, and the allegations in the Second Amended
Complaint, (see Doc. 18, generally), I construe Count I as a First Amendment
retaliation claim based on association and Count II as a First Amendment
retaliation claim based on speech. See, e.g., Killion v. Coffey, 696 F. App’x 76,
5

On July 14, 2017, Defendants filed a motion to dismiss the Second Amended
Complaint along with a supporting brief. (See Docs. 20-21, generally). Plaintiff’s
opposition brief was submitted on July 24, 2017, (see Doc. 22, generally), and
Defendants filed a reply brief in further support of their motion on July 26, 2017. (See
Doc. 23, generally). The motion to dismiss is thus fully briefed and ripe for
disposition.
II. Legal Standard
Federal Rule of Civil Procedure 12(b)(6) provides for the dismissal of a
complaint, in whole or in part, for failure to state a claim upon which relief can be
granted. See Fed. R. Civ. P. 12(b)(6). “Under the ‘notice pleading’ standard
embodied in Rule 8 of the Federal Rules of Civil Procedure, a plaintiff must come
forward with ‘a short and plain statement of the claim showing that the pleader is
entitled to relief.’” Thompson v. Real Estate Mortg. Network, 748 F.3d 142, 147 (3d
Cir. 2014) (quoting Fed. R. Civ. P. 8(a)(2)).
When resolving a Rule 12(b)(6) motion, “a court must consider no more than
whether the complaint establishes ‘enough facts to raise a reasonable expectation that
discovery will reveal evidence of the necessary elements’ of the cause of action.”
Trzaska v. L’Oreal USA, Inc., 865 F. 3d 155, 162 (3d Cir. 2017) (quoting Connelly v.
Lane Constr. Corp., 809 F.3d 780, 789 (3d Cir. 2016)). In reviewing the sufficiency
of a complaint, a court must take three steps: (1) identify the elements of the claim; (2)
identify conclusions that are not entitled to the assumption of truth; and (3) assume the
veracity of the well-pleaded factual allegations and determine whether they plausibly
give rise to an entitlement to relief. See Connelly, 809 F.3d at 787 (citations omitted).
“To survive a motion to dismiss, a complaint must contain sufficient factual matter,
accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v.
77-79 (3d Cir. 2017). If this understanding of Count I is incorrect and Plaintiff
elects to file a further amended complaint, he should clarify the nature of the
claim set forth therein.
6

Iqbal, 556 U.S. 662, 678, 129 S. Ct. 1937, 173 L. Ed. 2d 868 (2009) (quoting Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 570, 127 S. Ct. 1955, 167 L. Ed. 2d 929 (2007)).
III. Discussion
A.

Qualified Immunity.
In Counts I and II of the Second Amended Complaint, Plaintiff, as stated,

asserts First Amendment claims against the Borough and individual Defendants.
Individual Defendants claim that they are entitled to qualified immunity on Plaintiff’s
First Amendment claims.
Qualified immunity insulates government officials performing discretionary
functions from suit insofar as “their actions could reasonably have been thought
consistent with the rights they are alleged to have violated.” Anderson v. Creighton,
483 U.S. 635, 638, 107 S. Ct. 3034, 97 L. Ed. 2d 523 (1987). When a qualified
immunity defense is asserted, a court must determine (1) whether the facts alleged by
the plaintiff make out a violation of a constitutional right, and (2) whether that right
was clearly established at the time of the injury. Yarris v. Cty. of Del., 465 F.3d 129,
140-41 (3d Cir. 2006) (citation omitted). Courts may exercise their discretion in
deciding which inquiry to address first. Pearson v. Callahan, 555 U.S. 223, 236, 129
S. Ct. 808, 172 L. Ed. 2d 565 (2009). Here, individual Defendants argue that Plaintiff
fails to allege a violation of his constitutional rights. (See Doc. 21, 7-9, 10-12).
It is well-established that “an individual has a viable claim against the
government when he is able to prove that the government took action against him in
retaliation for his exercise of First Amendment rights.” Anderson v. Davila, 125 F.3d
148, 160 (3d Cir. 1997) (citing Mt. Healthy City Sch. Dist. v. Doyle, 429 U.S. 274, 97
S. Ct. 568, 50 L. Ed. 2d 471 (1977)). To properly plead a First Amendment retaliation
claim pursuant to 42 U.S.C. § 1983, a plaintiff must allege “(1) that [the plaintiff]
engaged in a protected activity, (2) that defendants' retaliatory action was sufficient
to deter a person of ordinary firmness from exercising his or her rights, and (3) that
there was a causal connection between the protected activity and the retaliatory
7

action.” Lauren W. ex rel. Jean W. v. DeFlaminis, 480 F.3d 259, 267 (3d Cir. 2007);
see also Rossiter v. City of Phila., 674 F. App’x 192, 196 (3d Cir. 2016); Thomas v.
Independence Twp., 463 F.3d 285, 296 (3d Cir. 2006).
In granting Defendants’ motion to dismiss Plaintiff’s amended complaint, I
found dispositive that Plaintiff failed to allege actions that were sufficient to deter a
person of ordinary firmness from exercising his or her rights. See Adamitis, 2017 WL
2633509, at *4 (citing Lauren W., 480 F.3d at 267). Specifically, I found the
allegations regarding the removal of Plaintiff’s key card access to the building, the
order that he remove his tax records from Borough storage, the Right-to-Know
requests, the disclosure of “personal, private, incorrect information on Plaintiff to the
public,” and the passing of an ordinance which modified the compensation scheme for
a Tax Collector, “even if true, do not rise to the level of actionable conduct.” Id. at *4.
I found the allegations regarding the removal of key card access and the prohibition
on the use of the storage area to be “merely de minimis inconveniences” because
Plaintiff was still able to access the building. Id. I further explained that the
allegation of the disclosure of Plaintiff’s personal information by Defendants was
insufficient because he failed to aver what information was disclosed and “to specify
the date, circumstances, and context of the alleged disclosure.”

Id. at *5.

Additionally, I noted that the alleged retaliatory acts against Plaintiff “‘would not
dissuade a person of ordinary firmness from’” engaging in the type of protected
conduct activity undertaken by Plaintiff. Id. (quoting McKee v. Hart, 436 F.3d 165,
170 (3d Cir. 2006)). Accordingly, I held that “the acts, as alleged, are de minimis and
do not give rise to a cognizable retaliation claim under § 1983. As such, the
individually named Defendants are entitled to qualified immunity.” Id.
Plaintiff’s Second Amended Complaint fails to cure these deficiencies. For one,
regarding the alleged disclosure of private information, Plaintiff now identifies that
this information was contained in a flyer that was prepared by Fedorka, Horvath,
Kovaleski, and Louryk and disclosed after May 8, 2015 but before May 19, 2015.
8

(See Doc. 18, ¶¶ 22, 24). Plaintiff argues that healthcare information is confidential
that should not be disclosed to the public and its disclosure causes far greater harm
than the publication of criticism or verbal reprimands. (See id. at ¶ 23 n.3). Plaintiff,
though, avers not that his healthcare information was disclosed, but rather vaguely
pleads that his “prescription payment” was listed on the flyer, (id. at ¶ 22), without any
additional factual allegations suggesting that such speech was, in fact, “private
information about an individual.” See Wagner v. Holtzapple, 101 F. Supp. 3d 462,
482 (M.D. Pa. 2015). Based on the allegations as pled in the Second Amended
Complaint, Plaintiff avers only that the cost of benefits or compensation he receives
from the Borough as an elected official was made public, (see Doc. 18, ¶ 22),3 and
Plaintiff does not cite any authority that such information is, in fact, confidential. Cf.
Dep’t of Conservation & Nat. Res. v. Office of Open Records, 1 A.3d 929, 938 (Pa.
Commw. Ct. 2010) (salary, actual compensation, or other expenses or payments to a
public official or agency is not exempt from disclosure under Pennsylvania’s Right-toKnow Law, 65 P.S. § 67.708(b)(6)(ii)); Stone v. Gilberton Borough, No. AP 20131402, 2013 WL 5091512, at *2 (Pa. Office of Open Records Sept. 9, 2013) (“records
revealing an agency's payments for an employee's medical benefits is ‘compensation
to an agency employee’ within the meaning of’ Section 708(b)(6)(ii) and subject to
public access.”).
Second, Plaintiff’s allegations regarding the Right-to-Know “requests are
similarly de minimis because, assuming that a Tax Collector is not subject to Right-toKnow disclosure laws, as Plaintiff suggests, he could have simply refused them. . . .
More importantly, I cannot find that a mere request for information by the Council
members rises to the level of retaliation.” Adamitis, 2017 WL 2633509, at *4.
Third, taking away Plaintiff’s access card and the request to remove records

3

Plaintiff does not allege that the flyer contained any factual information regarding
his health, such as any medical conditions or medications Plaintiff was prescribed.
9

from a storage area are merely de minimis inconveniences. See id. Although Plaintiff
in the Second Amended Complaint alleges that he needs access to the administrative
office to provide tax certifications which come by mail and fax, (see Doc. 18, ¶ 27),
his “access to the building was never taken away; he is still free to access it without
the convenience of a key card.” Adamitis, 2017 WL 2633509, at *4; (see also Doc.
18, ¶ 27 (“If no one is present in the administrative offices he cannot retrieve his mail
or fax as he has in the past 10 years.”)).
Fourth, the claim relating to the tampering with Plaintiff’s work computer “does
not rise above a mere speculation as to the named Defendants” since Plaintiff does not
allege “if any of the named Defendants were responsible for the alleged tampering.”
Adamitis, 2017 WL 2633509, at *4 n.3.
Lastly, Plaintiff’s allegation of retaliation for the adoption of a new Borough
ordinance altering the administration of the Tax Collector’s salary fails to support his
First Amendment claims “because his compensation was the same before and after the
ordinance, the alleged wrong is, again, trivial. Plaintiff claims only that, instead of
receiving the collected fees directly, he now receives them from the Borough, which
I cannot even characterize as an inconvenience.” Adamitis, 2017 WL 2633509, at *5
(citing Brennan v. Norton, 350 F.3d 399, 419 (3d Cir. 2003) (finding that briefly
taking an employee off the payroll and a suspension were more than de minimis to
support a cause of action for illegal retaliation)).
The allegations in the Second Amended Complaint are virtually identical to
those that I previously found insufficient to state an actionable claim for retaliation
under the First Amendment. (Cf. Doc. 18, generally, with Doc. 10, generally). At
most, the Second Amended Complaint identifies the date of the alleged disclosure of
information about the costs of Plaintiff’s benefits on a flyer prepared by Defendants
Fedorka, Horvath, Kovaleski, and Louryk. (See Doc. 18, ¶¶ 22, 24). However
accepting these allegations as true and construing the Second Amended Complaint in
the light most favorable to Plaintiff, see Witasick v. Minn. Mut. Life Ins. Co., 803 F.3d
10

184, 192 (3d Cir. 2012), Plaintiff’s nebulous allegation that the flyer disclosed his
“prescription payment” does not, by itself, support Plaintiff’s “conclusions that the
information was indeed ‘personal’ or ‘private’ or ‘incorrect’” or “confidential.”
Adamitis, 2017 WL 1522509, at *5. Accordingly, as stated in my prior ruling,
[T]he cumulative effect of the alleged acts by Defendants
would not dissuade a person of ordinary firmness from
engaging in First Amendment activities. For instance, the
arguably legitimate Right-to-Know requests occurred more
than five months after Plaintiff was allegedly ordered to
remove files from a storage area and his key card was taken
away, and the passage of the allegedly invalid ordinance
occurred the following year, three months later. That hardly
amounts to a “campaign of harassment,” as Plaintiff argues.
Thus, I find that the acts, as alleged, are de minimis and do
not give rise to a cognizable retaliation claim under § 1983.
As such, the individually named Defendants are entitled to
qualified immunity.
Id. at *6 (citation omitted).
B.

Municipal Liability.
Defendants also seek dismissal of Plaintiff’s First Amendment claims against

the Borough. (See Doc. 21, 9-10).
“[A] municipality cannot be held liable solely because it employs a tortfeasor
- or, in other words, a municipality cannot be held liable under § 1983 on a respondeat
superior theory.” Monell v. New York City Dept. of Soc. Servs., 436 U.S. 658, 691,
98 S. Ct. 2018, 56 L. Ed. 2d 611 (1978). Rather, a municipality can only be liable
under § 1983 when a constitutional injury results from the implementation or
execution of an officially adopted policy or informally adopted custom. See Beck v.
City of Pittsburgh, 89 F.3d 966, 971 (3d Cir. 1996). “Thus, although the municipality
may not be held liable for a constitutional tort under § 1983 on the theory of vicarious
liability, it can be held responsible as an entity when the injury inflicted is permitted
under its adopted policy or custom.” Id. (citing Monell, 436 U.S. at 694, 98 S. Ct.
2018). Significantly, though, a Monell claim is dependent upon the existence of an
underlying substantive constitutional violation. See, e.g., Noviho v. Lancaster Cnty.
of Pa., 683 F. App’x 160, 166 (3d Cir. 2017); Grazier ex rel. White v. City of Phila.,
11

328 F.3d 120, 124 (3d Cir. 2003); Brown v. Pa. Dep't of Health Emergency Med.
Servs. Training Inst., 318 F.3d 473, 482 (3d Cir. 2003).
Plaintiff fails to state a Monell claim against the Borough. As set forth above,
Plaintiff has not pled the existence of a violation of his constitutional rights. Because
Plaintiff has failed to do so, the municipal liability claim against the Borough will be
dismissed. See Bensinger v. Twp. of Hegins, No. 15-1450, 2016 WL 1242353, at *6
(M.D. Pa. Mar. 30, 2016).
C.

State Law Claim.
In Count III of the Second Amended Complaint, Plaintiff seeks to challenge a

local compensation ordinance on state tax law grounds. (See Doc. 18, ¶ 55-58).
Because all federal claims in the instant suit are being dismissed, I will decline to
exercise supplemental jurisdiction over Plaintiff’s state law claim pursuant to 28
U.S.C. § 1367(c)(3). Consequently, Count III will be dismissed without prejudice to
the right of Plaintiff to reassert this claim in the appropriate state court.
D.

Leave to Amend.
While Plaintiff has not requested leave to file a further amended complaint,

Third Circuit “precedent supports the notion that in civil rights cases district courts
must offer amendment - irrespective of whether it is requested - when dismissing a
case for failure to state a claim unless doing so would be inequitable or futile.”
Fletcher-Harlee Corp. v. Pote Concrete Contractors, Inc., 482 F.3d 247, 251 (3d Cir.
2007); Phillips v. Cnty. of Allegheny, 515 F.3d 224, 245 (3d Cir. 2008). Amendment
is futile “if the amended complaint would not survive a motion to dismiss.” Budhun
v. Reading Hosp. & Med. Ctr., 765 F.3d 245, 259 (3d Cir. 2014).
In the matter sub judice, Plaintiff has already amended his complaint twice once as a matter of course and once with leave of court. (See Docs. 1, 10, 18,
generally).

Although a plaintiff's “repeated failure to cure deficiencies by

amendments previously allowed” supports a finding of futility, Long v. Wilson, 393
F.3d 390, 400 (3d Cir. 2004) (internal quotation marks omitted), Plaintiff has only
12

been granted leave to amend once. As such, because Plaintiff may be able to set forth
facts sufficient to state his First Amendment claims, he will be given one final
opportunity to further amend his pleading.
IV. Conclusion
For the above stated reasons, Defendants’ motion to dismiss will be granted.
Plaintiff’s First Amendment claims will be dismissed, but he will be granted twentyone (21) days to file a further amended complaint to sufficiently allege those claims.
Failure to file a further amended complaint within that time will result in the dismissal
of those claims with prejudice. I will decline to exercise supplemental jurisdiction
over Plaintiff’s state law claim, which will be dismissed without prejudice.
An appropriate order follows.
November 14, 2017
Date

/s/ A. Richard Caputo
A. Richard Caputo
United States District Judge

13