Sundberg v. DiRocco et al
MEMORANDUM (Order to follow as separate docket entry) re: 12 Second MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM filed by Mark Temple, Mark DiRocco, Paula Reber, Lewisburg Area School District, and David Himes. Signed by Honorable Matthew W. Brann on 8/8/2017. (jn)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
MARK D. DIROCCO, DAVID HIMES, :
PAULA REBER, MARK TEMPLE
and LEWISBURG AREA SCHOOL
DISTRICT BOARD OF DIRECTORS, :
AUGUST 8, 2017
When the American starlet Mae West remarked of a friend, “there is less
here than meets the eye,” few could predict this same observation would one day
apply to a matter pending before this Court. This case involves facially enticing
allegations by a former high school athletics coach who contends that the nonrenewal of an annual coaching contract violated his constitutional rights.
To be sure, I take quite seriously any allegation that public entities are
willfully stifling inherent liberties. However, upon closer inspection, it is apparent
that the Plaintiff’s allegedly protected speech was made in his official capacity as a
coach and did not touch upon any matters of public concern. As such, Plaintiff’s
vague and shadowy pleadings must yield to his employer’s interest in maintaining
an orderly and effective workplace.
Plaintiff’s amended complaint will therefore be dismissed with prejudice. To
conclude otherwise and expend additional resources on this matter would disserve
those cases in which cognizable constitutional violations have actually occurred.
The facts underlying this action, although perhaps controversial to some in
the Lewisburg School District, do not give rise to a federal cause of action. From
the outset, I note that my task is not to determine whether I personally agree with
Lewisburg’s decisions or whether I believe they were carried out in the most
appropriate manner. The only question with which I am concerned is whether the
circumstances surrounding the non-renewal of an annual athletics coaching
contract violates the First or Fourteenth Amendments of the Constitution of the
United States. With that framing in mind, I turn to the operative facts.
Plaintiff Mark Sundberg was a high school social studies teacher for 25
years, as well as the boys’ track coach and the head cross-country coach at
Lewisburg Area High School in Lewisburg, Union County, Pennsylvania.1
Following retirement from his position as a teacher in June of 2012, he continued
to coach both the track and cross-country teams on a one-year basis until the end of
Plaintiff’s Amended Complaint, ECF No. 11, at ¶¶ 11–14.
2015-2016 school year. At that time, he was informed that the School District was
posting all head coaching jobs and would likely not be renewing his coaching
contracts for the subsequent year.2
Later, at a May 2016 meeting, Mr. Sundberg was formally notified that he
would not be recommended to coach the teams for the following season. When
asked for an explanation, he was told by High School Principal Paula Reber that
the school wanted to “go in another direction.”3 After not having been issued an
annual contract for 2016, Mr. Sundberg sent a letter to his student-athletes
regarding the dismissal, which also made its way to the Lewisburg cross-country
alumni website.4 Coach Sundberg was reoffered the position 29 hours later.5
In November 2016, during the following school year, Mr. Sundberg received
a letter from the School District’s Superintendent, Mark D. DiRocco, indicating
that Mr. Sundberg had failed to follow certain of the District’s policies.6 Although
Mr. Sundberg’s pleadings are quite hazy as to the reason for the letter, it appears to
be the product of a chain of events whereby he housed an athlete who purportedly
Id. ¶¶ 15, 45–47.
Id. ¶¶ 45–49.
Id. ¶ 54.
Id. ¶ 55.
Id. ¶ 69.
had been kicked out of his own home.7 The student’s parents then complained of
Mr. Sundberg’s actions to the School District.8
Shortly thereafter, all coaches were notified that the School District would
again be reposting all coaching jobs for the 2017-2018 school year.9 At the time of
the filing of this lawsuit and the Court’s July 6, 2017 oral argument, Plaintiff had
not been reoffered either the track or cross-country coaching positions for the
upcoming school year.10
As a consequence of this typically discretionary decision not to hire him as a
coach, the Plaintiff has brought rather grandiose First and Fourteenth Amendment
claims against the School District that he once called home. In particular, he
complains of retaliation, conspiratorial acts, and due process violations as against
several of the School District Defendants, including the superintendent, two
principals who oversaw the school at which he worked, the athletic director, and
the School Board.11
The sunset of Mr. Sundberg’s Green Dragon coaching career seems to have
come a long time in the making. Indeed, Plaintiff’s own complaint paints all too
suggestive a picture of the turbulent relationship between the Defendants and
Id. ¶¶ 64–68.
Id. ¶ 67.
Id. ¶ 75.
Id. ¶ 76.
Id. ¶¶ 2-6.
himself. On the face of that document alone, it is plain to see that this relationship
deteriorated over a number of years, leading to the inevitable result that has
brought the Plaintiff to the courthouse in this action.
The Plaintiff, by his own admission, had received numerous verbal and
written warnings to change his behavior as the coach of the cross-country and track
teams. In the fall of 2012, for instance, Mr. Sundberg was called to the thenprincipal’s (Defendant David Himes’s) office for a meeting. During this meeting, it
was explained to the Plaintiff that the District was not satisfied with the way he had
managed his teams in the past.12
In July 2015, as Mr. Himes prepared to retire from his position as principal,
he wrote the following to his successors in an evaluation of Coach Sundberg’s
As retiring Principal of the high school, I believe Mr. Sundberg
should not be rehired as a coach. His actions over the past years have
damaged the reputation of the school with the PIAA District IV
Committee. He continues to be confrontational with students and
parents who play club sports and does not show proper respect for
those in authority. It is my belief that allowing Mr. Sundberg to
continue in his positions will place the District and all of our athletic
teams in jeopardy!13
Subsequent to these events, Plaintiff retained counsel and filed the instant
law suit. “Quite honestly when we filed it,” Plaintiff’s counsel Matthew J. Zeigler,
Id. ¶¶ 22–23.
Id. ¶ 30.
Esquire, explained at oral argument, “we . . . thought that it would cause the
School District to be willing to settle.”14 In accordance with the following
discussion, the Defendants’ motion to dismiss is granted, and Plaintiff’s amended
complaint is dismissed with prejudice.
Under Federal Rule of Civil Procedure 12(b)(6), a defendant may file a
motion to dismiss for “failure to state a claim upon which relief can be granted.”
Such a motion “tests the legal sufficiency of a pleading,” and “streamlines
litigation by dispensing with needless discovery and factfinding.”15 “Rule 12(b)(6)
authorizes a court to dismiss a claim on the basis of a dispositive issue of law.”16
This is true of any claim, “without regard to whether it is based on an outlandish
legal theory or on a close but ultimately unavailing one.”17
Beginning in 2007, the Supreme Court of the United States initiated what
some scholars have termed the Roberts Court’s “civil procedure revival” by
significantly tightening the standard that district courts must apply to 12(b)(6)
Tr. of July 6, 2017 Oral Arg. at 7:12–15.
In re Hydrogen Peroxide Litigation, 552 F.3d 305, 316 n.15 (3d Cir. 2008) (Scirica, C.J.)
(quoting Szabo v. Bridgeport Machines, Inc., 249 F.3d 672, 675 (7th Cir. 2001) (Easterbrook,
J.)); Neitzke v. Williams, 490 U.S. 319, 326–27 (1989).
Neitzke, 490 U.S. at 326 (citing Hishon v. King & Spalding, 467 U. S. 69, 73 (1984)).
Neitzke, 490 U.S. at 327.
motions.18 In two landmark decisions, Bell Atlantic Corporation v. Twombly and
Ashcroft v. Iqbal the Roberts Court “changed . . . the pleading landscape” by
“signal[ing] to lower-court judges that the stricter approach some had been taking
was appropriate under the Federal Rules.”19 More specifically, the Court in these
two decisions “retired” the lenient “no-set-of-facts test” set forth in Conley v.
Gibson and replaced it with a more exacting “plausibility” standard.20
Accordingly, after Twombly and Iqbal, “[t]o 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.’”21 “A claim has facial plausibility when the
plaintiff pleads factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct alleged.”22 “Although the
plausibility standard does not impose a probability requirement, it does require a
pleading to show more than a sheer possibility that a defendant has acted
unlawfully.”23 Moreover, “[a]sking for plausible grounds . . . calls for enough facts
See Howard M. Wasserman, The Roberts Court and the Civil Procedure Revival, 31 Rev.
Litig. 313 (2012).
550 U.S. 544 (2007); 556 U.S. 662, 678 (2009); Wasserman, supra, at 319–20.
Iqbal, 556 U.S. at 670 (citing Conley v. Gibson, 355 U.S. 41 (1957)) (“[a]cknowledging that
Twombly retired the Conley no-set-of-facts test”).
Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 570).
Iqbal, 556 U.S. at 678.
Connelly v. Lane Const. Corp., 809 F.3d 780, 786 (3d Cir. 2016) (Jordan, J.) (internal
quotations and citations omitted).
to raise a reasonable expectation that discovery will reveal evidence of
The plausibility determination is “a context-specific task that requires the
reviewing court to draw on its judicial experience and common sense.”25 No matter
the context, however, “[w]here 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.’”26
When disposing of a motion to dismiss, a court must “accept as true all
factual allegations in the complaint and draw all inferences from the facts alleged
in the light most favorable to [the plaintiff].”27 However, “the tenet that a court
must accept as true all of the allegations contained in the complaint is inapplicable
to legal conclusions.”28 “After Iqbal, it is clear that conclusory or ‘bare-bones’
allegations will no longer survive a motion to dismiss.”29 “Threadbare recitals of
the elements of a cause of action, supported by mere conclusory statements, do not
Twombly, 550 U.S. at 556.
Iqbal, 556 U.S. at 679.
Id. at 678 (quoting Twombly, 550 U.S. at 557 (internal quotations omitted)).
Phillips v. Cnty. of Allegheny, 515 F.3d 224, 228 (3d Cir. 2008) (Nygaard, J.).
Iqbal, 556 U.S. at 678 (internal citations omitted).
Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d Cir. 2009) (Nygaard, J.).
Iqbal, 556 U.S. at 678.
As a matter of procedure, the United States Court of Appeals for the Third
Circuit has instructed that:
Under the pleading regime established by Twombly and Iqbal, a court
reviewing the sufficiency of a complaint must take three steps. First, it
must tak[e] note of the elements [the] plaintiff must plead to state a
claim. Second, it should identify allegations that, because they are no
more than conclusions, are not entitled to the assumption of truth.
Finally, [w]hen there are well-pleaded factual allegations, [the] court
should assume their veracity and then determine whether they
plausibly give rise to an entitlement to relief.31
Defendants’ Motion Is Granted As To Plaintiff’s First
Amendment Claim, Because He Has Failed To Allege Sufficient
Facts Plausibly Suggesting That He Spoke On A Matter Of Public
Concern And That His Speech Caused Him Not To Be Hired.
To prevail on a claim under 42 U.S.C. § 1983, a plaintiff must establish both
that the conduct complained of was committed by a person acting under color of
state law and that the conduct deprived the plaintiff of rights, privileges, or
immunities secured by the Constitution or laws of the United States.32 In this case,
the Plaintiff alleges that his firing was retaliatory conduct that effectively deprived
him of his constitutional right to free speech.
To state a First Amendment retaliation claim, the Plaintiff must prove that
“(1) his speech is protected by the First Amendment and (2) the speech was a
Connelly, 809 F.3d at 787 (internal quotations and citations omitted).
Kost v. Kozakiewicz, 1 F.3d 176, 184 (3d Cir. 1993).
substantial or motivating factor in the alleged retaliatory action.”33 Because the
First Amendment protects a citizen’s right to speech, government actors may not
retaliate against a citizen when he or she chooses to exercise that right.
If a plaintiff is able to establish both elements of that claim, the burden is
shifted to the defendant to prove that “the same action would have been taken even
if the speech had not occurred.”34 If the defendant can establish that proposition, no
violation of the First Amendment may be found.
Both parties agree that public employees do not surrender all of their First
Amendment rights simply “by reason of their employment.”35 By the same token,
the Supreme Court has recognized that the government has an interest as an
employer in “promoting the efficiency of the public services it performs through its
employees.”36 As the Court noted in Pickering, the goal of a case such as this is to
balance that governmental interest with the interests “of the teacher, as a citizen, in
commenting upon matters of public concern.”37
In order to establish whether or not a specific statement is covered by the
First Amendment, the Court must conduct a preliminary inquiry, which is solely a
Dougherty v. School Dist. Of Philadelphia, 772 F.3d 979, 986 (3d. Cir. 2014).
Garcetti v. Ceballos, 547 U.S. 410, 417 (2006).
Pickering v. Board of Ed. of Tp. High School Dist. 205, Will County, Illinois, 391 U.S. 563,
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question of law.38 I first must determine whether the Plaintiff spoke “as a citizen,
not as an employee.”39 Second, I must decide whether the speech involved a matter
of public concern.40 Third, I must consider whether the government lacks an
“adequate justification” for “treating the employee differently than the general
public based on its needs as an employer.”41
When employee speaks pursuant to his official duties, he is not speaking as a
citizen for First Amendment purposes, and those communications are not entitled
to absolute protection from employer discipline.42 As such, if an employee is
speaking to a topic that would reasonably be construed as being part of his or her
“daily professional activities,”43 that employee is not entitled to blanket First
The Court in Garcetti explained that defining when an employee is speaking
pursuant to his official duties requires a “practical” inquiry.44 There is no simple
framework for defining the boundaries of an employee’s official duties, and it is
heavily dependent on the facts at issue, requiring a court to examine both the
Miller v. Clinton County, 544 F.3d 542, 548 (3d. Cir. 2008).
Dougherty, 772 F.3d at 987.
Garcetti, 547 U.S. at 421.
Id. at 422.
Id. at 424.
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plaintiff’s “de facto and de jure responsibilities.”45 The question thus becomes
“whether the speech at issue is itself ordinarily within the scope of an employee’s
The test for determining whether speech touches upon a matter of public
concern is similarly flexible.47 The Supreme Court has previously explained that
such speech is at the heart of First Amendment protections,48 and that it seeks to
encourage “uninhibited, robust, and wide-open” debate on public issues.49
However, not all speech “is of equal First Amendment importance.”50 In cases
where the speech is primarily of private significance made in the course of one’s
official duties, First Amendment protections are less expansive. While the Court
has not provided clear rules for distinguishing between speech of public and
private concern, it has outlined general principles that help guide this Court’s
inquiry into the facts at hand.
Speech is more likely to be considered a matter of public concern when it
may “be fairly considered as relating to any matter of political, social, or other
Dougherty, 772 F.3d at 989.
Lane v. Franks, 134 S.Ct. 2369, 2373 (2014).
Snyder v. Phelphs, 562 U.S. 443, 452 (2011).
Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc., 472 U.S. 749, 758–759 (1985).
New York Times Co. v. Sullivan, 376 U.S. 254, 270 (1964).
Hustler Magazine, Inc. v. Falwell, 485 U.S. 46, 56 (1988) (quoting Dun & Bradstreet, 472
U.S. at 758).
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concern to the community.”51 The same may be said of speech that “is a subject of
legitimate news interest; that is, a subject of general interest and of value and
concern to the public.”52 Therefore, deciding in which basket the speech at issue
belongs also requires me to examine the “content, form, and context” of the
If the Plaintiff establishes both the public concern and causation prongs, the
Court would next examine whether or not the government had “adequate
justification for treating the employee differently from any other member of the
general public.”54 Generally, a government entity is allowed broader discretion in
its decision to restrict speech “when it acts in its role as employer.”55
Turning to the facts of this matter, it is evident that the Plaintiff has failed to
state a claim upon which relief can be granted under the prevailing law. For
starters, the Plaintiff has failed to establish that his speech is protected under the
First Amendment, as he undoubtedly falls short of showing that he spoke in his
capacity as a private citizen on a matter of public concern rather than as a public
employee on matters of official school district business.
Connick v. Myers, 461 U.S. 138, 146 (1983).
City of San Diego, Cal. v. Roe, 543 U.S. 77, 83-84 (2004).
Dun & Bradstreet, 472 U.S. at 761.
Garcetti, 547 U.S. at 418.
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Initially, I also note the exceptionally vague language with which the
Plaintiff attempts to allege that he engaged in protected speech. The Plaintiff’s
amended complaint fails to explain what sort of speech the Court should even be
evaluating. By merely alleging that he “advocated” for various outcomes and
“engaged in frequent acts of speech, advocacy, association and the like,” the
plaintiff avoids any specificity that would enable me to better gauge the
plausibility of his claims. Such shadowy language makes me question whether this
diction was perhaps purposely chosen so as to obfuscate, rather than elucidate, the
operative facts underlying this lawsuit.
The lead paragraph in Plaintiff’s amended complaint is a prime example of
this vagueness. It does little to establish that Mr. Sundberg was speaking on any
matters of public concern. The allegations, set forth at Paragraph 20, are
conclusory and ambiguous under Twombly and Iqbal, and seems to suggest that
Plaintiff’s speech—to the extent that it even may be characterized as such—was
made in his capacity as a coach and focused on high school athletics policies. It
reads as follows:
Beginning in 2012, Coach Sundberg engaged in protected First
Amendment activity, explicitly including the following:
a. He advocated, speaking directly with the administration, for
coach autonomy in situations where the administration, visà-vis Principal David Himes attempted to micromanage the
training of Student/Athletes;
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b. He advocated, speaking directly with the administration, for
Student/Athlete safety in similar situations;
c. He advocated, jointly with a number of other local coaches,
for District wide changes in meet locations and for other
changes in District practice and policy intended to protect
Student/Athletes and advance their interests;
d. He advocated, and encouraged parents, students and other
members of the community to advocate, on behalf of his
continuing as a Coach so that he would be able to care for
the best interests of the program and the students;
e. He acted to protect a Student/Athlete who was also an adult
who was experiencing domestic abuse, neglect and then
homelessness by offering that Student/Athlete a place to live
temporarily, speaking and cooperating with police in such
efforts and speaking and cooperating with other members of
the School District in such efforts, in order to protect the
interests of that Student/Athlete;
f. Engaged in frequent acts of speech, advocacy, association
and the like, speaking with parents, administrators and
officials from his and other School Districts or School
related athletic associations, in order to advance and protect
the interests of the team and the Student/Athletes.
The allegations above suggest nothing other than the Plaintiff at some point
communicated with administrators regarding management of his team’s day-to-day
activities or his employment as a coach. Certain conversations were apparently
also had in his capacity as a coach to his students, their parents, and other coaches
or athletic officials. Nothing in those allegations suggests that Mr. Sundberg spoke
about any subject other than those directly related to his official duties as a coach.
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Moreover, the Plaintiff has pled little context beyond superficial legal
phrases that would enable this Court to conclude otherwise. For instance,
Plaintiff’s pleadings shed sparse light upon the manner in which his
communications were made, what channels were used to transmit them, who the
audience was, and what the substance of the speech covered. Although Plaintiff is
entitled to certain reasonable inferences as the nonmovant, it is not this Court’s
task to fill in the blanks, tie up every loose end, and otherwise construct a factual
narrative that would give rise to a plausible claim on Plaintiff’s behalf.
Plaintiff’s theory of the case also takes a rather scattershot approach. Indeed,
the speech that matters in a refusal to hire case is the speech that is made to or
reasonably known by the decisionmaker. For the speech to be the legal cause of the
employment action, the appropriate decisionmaker must have known about it. To
that end, I note that Plaintiff’s allegations about his speech to parents, alumni,
other coaches, etc. are largely tangential to the present motion, absent some causal
showing as to their relevance.
In performing their “daily professional activities” Garcetti, 547 US at 422,
public school employees, like Mr. Sundberg here, face a steep uphill climb when
they bring free speech claims. See, e.g., Schul v. Sherard, 102 F. Supp. 2d 877, 885
(S.D. Ohio 2000) (high school track coach’s speech did not touch upon a matter of
public concern when he advocated that his athletes should increase their caffeine
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intake to enhance their performance at upcoming meets); Davis v. McCormick, 898
F. Supp. 1275, 1278 (C.D. Ill. 1995) (high school volleyball coach’s speech did not
touch upon a matter of public concern when she discussed fundraising with her
players, team loyalty and camaraderie, and reminders for pursuing collegiate
recruitment process); Borden v. Sch. Dist. of Twp. of E. Brunswick, 523 F.3d 153
(3d Cir. 2008) (Fisher, J.) (high school football coach’s speech did not touch upon
a matter of public concern when he bowed his knee and joined a moment of silent
prayer with his team, intending to promote solidarity, help form the team into a
cohesive family unit, and show respect for the players’ prayers). Indeed, these
examples, each of which arguably demonstrates advocacy of greater breadth and
public importance than Mr. Sundberg’s, illustrate just how demanding a showing
of plausibility must be when applied to public schoolteachers and coaches.
So too does Plaintiff’s argument conflate action with speech or other
expressive conduct. Indeed, the incident involving his housing a student who was
purportedly kicked out of his own home is unlikely protected First Amendment
conduct. The act itself, whether admirable or an overstepping of his role—and I
cannot discern which it may be from the sparse pleadings alone—is undoubtedly
an instance of conduct, not speech.
“We cannot accept the view that an apparently limitless variety of conduct
can be labeled ‘speech’ whenever the person engaging in the conduct intends
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thereby to express an idea.”56 In distinguishing conduct from speech, the Supreme
Court of the United States has considered “whether an intent to convey a
particularized message was present, and whether the likelihood was great that the
message would be understood by those who viewed it.”57 Indeed, even “when
‘speech’ and ‘nonspeech’ elements are combined in the same course of conduct,”
the Court has recognized that “a sufficiently important governmental interest in
regulating the nonspeech element can justify incidental limitations on First
Pushing the limits of Plaintiff’s contention, I asked at oral argument whether
Mr. Sundberg would still have engaged in speech rather than conduct if he had, for
instance, assisted an elderly lady in crossing a street during a cross-country meet.
Counsel for Plaintiff suggested that act still would constitute speech.59 Applying
the law set forth by the Supreme Court above, that simply cannot be the case.
Although Mr. Sundberg’s actions may have been well-intentioned, that does not
mean they were intended to express a message that went beyond his role as a coach
and mentor—or express a message at all.
United States v. O’Brien, 391 U.S. 367, 376 (1968).
Texas v. Johnson, 491 U.S. 397, 404 (1989).
O’Brien, 391 U.S. at 376.
Tr. at 22:08–13.
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In response, Plaintiff contends that certain reports he made to the police in
connection with this particular student could constitute protected speech. Although
such reports likely entailed speech, such speech was not protected by law. In
particular, such reports were provided directly to the authorities, concerned a
student within his control, were likely made pursuant to mandatory abuse reporting
duties, and were not pled as factors in the School District’s coaching decision.60
The Plaintiff’s argument for his First Amendment claim is also based on
internal logic inconsistencies and conclusory statements that cannot survive a
motion to dismiss. In particular, the Plaintiff attempts to narrow his job description
such that every statement he ever made must be considered to have fallen outside
the scope of his official duties. This rhetorical attempt fails for two reasons. First,
the Plaintiff’s actions and speech took place in the course of his employment as a
coach, as illustrated by the job description that Plaintiff himself submitted. Second,
even if the statements were made as a citizen rather than an employee, they would
not touch upon any matter of public concern. They relate solely to administration
of the School District’s track and cross-country programs.
To this end, the Plaintiff’s amended complaint begins with the proposition
that he had “various duties related to all of his coaching positions.”61 However,
See Foraker v. Chaffinch, 501 F.3d 231 (3d Cir. 2007) (officers statements were made in
their official capacity where “[t]heir positions . . . required them to report” as much).
Plaintiff’s Amended Complaint, ¶ 17.
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seeming to depart from this characterization, the Plaintiff’s brief in opposition to
Defendants’ motion to dismiss rather bluntly attempts to artificially confine his
responsibilities by suggesting that “he was only employed to athletically develop
The Plaintiff’s own argument, however, is most clearly undermined by
evidence that he himself has put forth. In fact, Coach Sundberg submitted his own
evaluation form, filled out by Principal Himes and Athletic Director Temple. The
attachment clearly shows that the Plaintiff’s job duties went well beyond the
singular task to “athletically develop the students” and even beyond the mere
administrative duties that Plaintiff’s counsel described at oral argument.
In determining whether speech is entitled to First Amendment protections, it
is neither necessary nor sufficient that a responsibility be listed in the employee’s
job description or administrative evaluation forms.63 Instead, as determined in
Garcetti, the question is whether or not the speech was made pursuant to the
employee’s official duties. In other words, the Court considers whether this was
something that the employee “was employed to do.”64 The Supreme Court has
Plaintiff’s Brief in Opposition to Defendants’ Motion to Dismiss, ECF No. 15, at 5.
Garcetti, 547 U.S. at 424-5 (2006).
Id. at 421.
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further clarified that the key issue is “whether the speech at issue is itself ordinarily
within the scope of an employee’s duties.”65
“[A] court may consider an undisputedly authentic document that a
defendant attaches as an exhibit to a motion to dismiss if the plaintiff’s claims are
based on the document. Otherwise, a plaintiff with a legally deficient claim could
survive a motion to dismiss simply by failing to attach a dispositive document on
which it relied.”66 Indeed, all—and more—of the topics gleaned from Mr.
Sundberg’s amended complaint fall precisely within his official job description.
The Plaintiff was officially evaluated on, among other facets of his job:
maintaining a rapport with athletes, their parents, the community, the coaching
staff, and the media; earning the respect of his team; preparing players for
competition; organizing practice sessions; maintaining an organized program;
maintaining appropriate records; promoting student involvement in the program;
preparing athletes mentally and physically; handling athletic injuries appropriately;
maintaining player control; using updated coaching methods; and fulfilling all preand post-game responsibilities.67
Lane v. Franks, 134 S.Ct. 2369, 2379 (2014).
Pension Benefit Guar. Corp. v. White Consol. Indus., Inc., 998 F.2d 1192, 1196 (3d Cir.
ECF No. 15 at 28–30.
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Importantly, I note that those same documents expressly state “[A]ll
coaching positions in the Lewisburg Area School District are for one season only.
There is no guarantee of employment beyond the completion of the athletic season
that you were hired to coach.”68 An employment evaluation completed around that
time and submitted for my consideration by Plaintiff reads:
Your issues with the PHAC Track committee and District 4
a. Last fall you forwarded emails that encouraged people to email the
district committee spreading supposed “truths” about venues and
other issues without all the facts. The District 4 President called
our high school principal indicating that our school needed to get
our coaches under control.
b. Indicating to other District 4 track coaches that the District 4
committee viewed them as “LIARS AND PLAYERS!” and
actually sending an email to the coaches addressing them as such.
People were offended and I heard about this and received multiple
copies of the email. Numerous people commented to me that you
were acting as spokesperson for all league coaches yet you were
not appointed to that position nor did they feel the same the same
way you did. They did not like your approach with the District
committee concerning qualification standards and entry of
c. Your discussion with Mr. Kelly at the district meet concerning
“jury of appeal.” Again numerous people commented that you
seemed to take this a bit too far.69
In addition, the School District has proffered compelling justifications for its
actions. It has suggested that employing coaches who adhere to district-wide policy
Id. at 32.
ECF No. 15 at 30.
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is a key element in ensuring its athletes’ safety and enabling them to achieve peak
athletic performance. So too must a school’s coaches abide by the appropriate
codes of conduct and refrain from arguing with meet officials and other athletic
officials. When a coach’s conduct begins to expose his school district to potential
liability, the school is not restrained from taking appropriate actions. As I have
noted in the past, “it is not the judiciary’s place to substitute its own judgment for
that of a [ ] manager whose day-to-day closeness with . . . operations commands a
Finally, Mr. Sundberg has not satisfied the causation element of a First
Amendment retaliation. To be sure, only his own conjectures connect his speech to
the ultimate employment decision. “To establish the requisite causal connection a
plaintiff usually must prove either (1) an unusually suggestive temporal proximity
between the protected activity and the allegedly retaliatory action, or (2) a pattern
of antagonism coupled with timing to establish a causal link.”71 “In the absence of
that proof the plaintiff must show that from the evidence gleaned from the record
Moore v. CVS Rx Servs., Inc., 142 F. Supp. 3d 321, 341 (M.D. Pa. 2015), aff’d, 660 F. App’x
149 (3d Cir. 2016). See also Betz v. Satteson, No. 4:15-CV-00851, 2017 WL 1474275, at *31
(M.D. Pa. Apr. 25, 2017) (“My task as a federal judge is not to second guess her decision, to
say whether it was or was not the most proper one pedagogically speaking. Rather, it is
simply to determine whether it violated I.B.’s constitutional rights. Because it clearly did not,
summary judgment is warranted.”); Warkevicz v. Berwick Area Sch. Dist., No. 4:15-CV01922, 2016 WL 3753108, at *12 (M.D. Pa. July 14, 2016) (“To hold otherwise would open
thousands of commonplace school board determinations to second guessing through the
judicial system. Suffice it to say, that would be an ill-advised outcome.”).
Lauren W. ex rel. Jean W. v. DeFlaminis, 480 F.3d 259, 267 (3d Cir. 2007).
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as a whole the trier of the fact should infer causation.”72 “A court must be diligent
in enforcing these causation requirements because otherwise a public actor
cognizant of the possibility that litigation might be filed against him, particularly in
his individual capacity, could be chilled from taking action that he deemed
appropriate and, in fact, was appropriate.”73
The bulk of the alleged “speech” by Coach Sundberg occurred in 2016,
before he was reoffered the position for the 2016-2017 school year. That much is
true of his advocacy to the district administrators, his notification to the community
about his position, and his advocacy regarding administration of the subject
athletic programs. That temporal fact tends to suggest that the claimed speech
played little role in the School District’s decisions. Otherwise, this lawsuit would
have been necessitated one year earlier than it actually was.
Second, Plaintiff presents no evidence that enables this Court to glean a
discriminatory or retaliatory motive particular to Mr. Sundberg from the record as
a whole. To the contrary, it is undisputed that all coaching jobs were reposted
during both years that are at issue. That being said, Coach Sundberg’s retaliation
Id. “[N]othing precludes a court from determining proximate cause as a matter of law if a
jury could not reasonably differ on the issue.” Chetty Holdings Inc. v. NorthMarq Capital,
LLC, 556 F. App’x 118, 121 (3d Cir. 2014) (Fisher, J.). “To put it another way, where there
is no issue of fact, the issue of proximate cause is one for the court to determine as a matter
of law.” Heeter v. Honeywell Int’l, Inc., 195 F. Supp. 3d 753, 758 (E.D. Pa. 2016), aff’d 2017
WL 3128488 (3d Cir. July 24, 2017).
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claim fails for this independent reason. Accordingly, this claim will be dismissed
The Defendants’ Motion To Dismiss Is Granted As To Plaintiff’s
42 U.S.C. § 1985(3) Conspiracy Claim.
Under 42 U.S.C. § 1985(3), a plaintiff may seek redress for injured sustained
at the hands of a conspiracy “formed for the purpose of depriving, either directly or
indirectly, any person or class of persons of the equal protection of the laws, or of
equal privileges and immunities under the laws.”74 Griffin v. Breckenridge, a
decision by the Supreme Court of the United States regarding the scope of liability
under the Ku Klux Klan Act, was the first in a line of cases to establish what a
plaintiff must prove in order to sustain a claim under that statute.75 Over time, the
Court has clarified that a plaintiff must prove the following to plead a successful
§ 1985(3) claim: (1) a conspiracy; (2) for the purpose of depriving, either directly
or indirectly, any person or class of persons of the equal protection of the laws; and
(3) an act in furtherance of the conspiracy; (4) whereby a person is either injured in
his person or property or deprived of any right or privilege.76
42 U.S.C. § 1985(3).
Griffin v. Breckenridge, 403 U.S. 88, 91 S. Ct. 1790, 29 L. Ed. 2d 338 (1971)
United Broth. of Carpenters and Joiners of America, Local 610 AFL-CIO v. Scott, 463 U.S.
825, 828-9 (1983) (citing Griffin v. Breckenridge, 403 U.S. 88, 102-3 (1971)).
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Importantly, Section 1985(3) requires the “intent to deprive of equal
protection, or equal privileges and immunities,”77 and therefore, the Plaintiff must
allege “some racial, or perhaps otherwise class-based, invidiously discriminatory
animus behind the conspirators’ action” in order to survive a motion to dismiss.78
Our Court of Appeals has held that there are “two distinct aspects” to the “classbased invidiously discriminatory animus.”79 In other words, the Plaintiff must
allege that the conspiracy was both “motivated by discriminatory animus against
an identifiable class and that the discrimination against the identifiable class was
The Plaintiff’s claim under § 1985(3) fails for a number of reasons. First, he
fails to establish that a conspiracy of any kind ever existed. Second, he fails to
satisfy the identifiable class requirement. Finally, he fails to put forth sufficient
facts to show that any alleged discrimination was invidious under the statute.
The Plaintiff simply fails to allege facts sufficient to support the notion of a
conspiracy, whether implicit or explicit. The Plaintiff provides no facts to suggest
that a conspiracy ever existed among the Defendants. Simply being told that
several of the Defendants had participated in an employment decision does not
Id. at 102.
Farber v. City of Paterson, 440 F.3d 131, 135 (3d Cir. 2006).
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satisfy the pleading requirements under Twombly and Iqbal. Otherwise, every
employment decision made or approved by more than one member of a managerial
staff would automatically come within § 1985’s conspiracy requirement. Rather,
conspiracy is something more than parallel action—it requires an agreement to
achieve an unlawful objective.81
Similarly, the Plaintiff alleges no facts that would support the suggestion of
an implied conspiracy based upon circumstantial evidence. His threadbare
assertions that the Defendants “conspired together in order to deprive students of
an effective advocate,” and to “deny the free speech rights of public employees” 82
are insufficient to withstand a motion to dismiss. Courts have noted that “it is not
enough to use the term ‘conspiracy’ without setting forth supporting facts that tend
to show an unlawful agreement.”83
In addition to his failure to establish a conspiracy intended to deprive him of
any rights protected under § 1985, the Plaintiff has failed to establish his
membership in any legally cognizable class. Plaintiff’s attempts to satisfy this
requirement landed far afield from prevailing law and were unappreciated by this
Court. For the purposes of a claim under this statute, a class “cannot be defined
See Twombly, 550 U.S. at 553.
Am. Complaint, at ¶ 90-1.
Gordon v. Lowell, 95 F.Supp.2d 264, 270 (E.D. Pa. 2000).
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simply as the group of victims of the tortious action.”84 Plaintiff’s argument has
shifted dramatically between his amended complaint, his brief, and at oral
argument. In his amended complaint, the Plaintiff states that he could be
considered as representing a class of “student-athletes.”85 Then, in his brief,
Plaintiff states the following: “As Counsel points out, the Courts would likely be
reluctant to find high school athletes are a protected class.”86 Instead, he changes
course and suggests in his brief that the Court should recognize the Plaintiff as
being in a protected class because of his age or his status as a public employee.87
During oral argument, Plaintiff’s counsel was asked to point to any decision
from any federal court that recognized student athletes as a class under § 1985. He
conceded that he was unaware of any court that had done so.88 Similarly, the
Plaintiff has pointed to no precedent that suggests that public employees would be
a recognized class under § 1985. As such, the Plaintiff cannot survive a motion to
dismiss on the basis of his threadbare allegations alone.
Even if the Court were to find an identifiable class here, any alleged
discrimination would not be considered invidious under existing law. Courts have
historically given credence to claims of conspiracy under § 1985(3) only when the
Bray v. Alexandria Women's Health Clinic, 506 U.S. 263, 269 (1993).
Pl.’s Complaint, at 90.
Pl.’s Brief n Opposition to Defendants’ Motion to Dismiss, 13.
Id. at 13-4.
Tr. Oral Argument at 10:06–12.
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discrimination is based on a class’s “immutable characteristics.”89 Such
characteristics, which are “determined solely by the accident of birth, . . . bear no
relation to ability to perform or contribute to society.” 90 As a result, the Third
Circuit has found discrimination on the basis of race, sex, and mental handicap to
be invidious, due to the “irrational and odious nature of discrimination,” based on
characteristics individuals have no control over.91
In Farber v. City of Paterson, for instance, the Third Circuit held that
discrimination based on political affiliation, a mutable characteristic, did not
qualify for protection under § 1985(3). The basis of one’s employment is certainly
more closely comparable to one’s political affiliation than the color of one’s skin
or mental faculties from birth. Additionally, the Plaintiff fails to plead any facts
that give rise to the inference that any alleged discrimination was in fact based on a
discriminatory animus against a class. Absent that nexus, the claim must fail.
Instead, the Plaintiff asserts that the reason for non-renewal of his employment
hinged on actions that he took. The Plaintiff cannot claim discriminatory animus
against a class while arguing that his individual actions caused his firing.
Farber, 440 F.3d at 142 (3d Cir. 2006).
Frontiero v. Richardson, 411 U.S. 677, 687 (1973).
Novotny v. Great American Federal Savings and Loan Assoc., 584 F.2d 1235, 1243 (3d Cir.
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In other words, Plaintiff has failed to plead a causal nexus between any of
these alleged class membership characteristics and the ultimate employment
action. Indeed, Mr. Sundberg fails to show that his contract was not renewed
because of his age or his public employment status. To the contrary, the record is
replete with suggestions that he was not reoffered the positions based upon the
manner in which he personally conducted himself in the past on numerous
occasions and because the School District thereafter elected to move in a different
direction. Nothing of record whatsoever, not even Plaintiff’s own allegations, lend
the slightest inference of discrimination based upon such animus. Accordingly, in
light of the foregoing reasoning, the Plaintiff’s claim of conspiracy under
§ 1985(3) cannot survive the motion to dismiss.92 It is dismissed with prejudice.
My analysis has considered whether the non-renewal, to the extent that it even may be called
that, was an adverse action taken in retaliation for the supposed exercising of constitutional
rights. That decision does not rise to the requisite level of adversity and nevertheless fails for
the reasons stated above. In addition, Plaintiff somewhat opaquely alleges that the School
District included purportedly defamatory statements about him in an internal review.
“[W]rite-ups and meetings with supervisors are not materially adverse employment actions.”
Griggs v. Univ. Health Sys., No. CIV. SA-06-CV-384, 2008 WL 3981814, at *8 (W.D. Tex.
Aug. 25, 2008). Neither are “reprimands for insubordination,” “meetings with supervisors,”
and other similar “directions.” Prince-Garrison v. Maryland Dep’t of Health & Mental
Hygiene, 317 Fed. Appx. 351, 353 (4th Cir. 2009). Moreover, Plaintiff has not pled a claim
for defamation in the operative complaint. Neither has he suggested the requisite publication
element to satisfy an actionable defamation claim was ever met. Still more, he has not shown
in his pleadings that these allegedly defamatory internal evaluation comments shared a causal
nexus in any way with future failures to obtain subsequent employment positions at different
institutions or would not have occurred absent his alleged speech.
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Defendants’ Motion To Dismiss Is Granted As To Plaintiff’s
Fourteenth Amendment Due Process Claim.
The procedural component of the Due Process Clause of the Fourteenth
Amendment provides that a state shall not “deprive any person of life, liberty, or
property, without due process of law.”93 “Due process, unlike some legal rules, is
not a technical conception with a fixed content unrelated to time, place and
circumstances.”94 Instead, it is “flexible and calls for such procedural protections
as the particular situation demands.”95 Thus, “resolution of the issue whether the
administrative procedures provided here are constitutionally sufficient requires
analysis of the governmental and private interests that are affected.”96
As the Third Circuit has described, “To establish a cause of action for a
violation of procedural due process, a plaintiff in addition to proving that a person
acting under color of state law deprived it of a protected property interest, must
establish that the state procedure for challenging the deprivation does not satisfy
the requirements of procedural due process.”97 In Mathews v. Eldridge, the
U.S. Const. amend. XIV.
Mathews v. Eldridge, 424 U.S. 319, 334 (1976).
Midnight Sessions, Ltd. v. City of Philadelphia, 945 F.2d 667, 680 (3d Cir. 1991).
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Supreme Court verbalized this inquiry as a balance among: the private interest; the
risk of an erroneous deprivation; and the Government’s administrative interests.98
A due process plaintiff cannot merely “a unilateral expectation” of receipt of
his benefit.99 “He must, instead, have a legitimate claim of entitlement to it.”100
Coach Sundberg cannot plausibly allege the existence of any protected property
interest in year-to-year athletics coaching contracts.
“There is no fundamental right to retain public employment.”101 “Those
property rights which enjoy procedural due process protection are determined by
state law.”102 “Here, under controlling Pennsylvania law, a public employee takes
his job subject to the possibility of summary removal by the employing authority.
He is essentially an employee-at-will.”103 In fact, the United States District Court
for the Eastern District of Pennsylvania has already held that a football coach had
no property interest in a year-to-year contractual coaching position.104 Even
“[w]hen a term employee is terminated before his contract ends but he is fully
compensated for the entire term of the contract, the employee cannot recover under
Mathews, 424 U.S. at 334.
Robb v. City of Philadelphia, 733 F.2d 286, 292 (3d Cir. 1984).
Puchalski v. Sch. Dist. of Springfield, 161 F. Supp. 2d 395, 405 (E.D. Pa. 2001).
Elmore v. Cleary, 399 F.3d 279, 282 (3d Cir. 2005).
Puchalski v. Sch. Dist. of Springfield, 161 F. Supp. 2d 395, 405–06 (E.D. Pa. 2001).
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§ 1983.”105 The same result was reached just last year in Paterno v. Pennsylvania
State Univ., as the subject coaches could not allege that their employment “was
anything other than at-will” or that there was any “special contract requiring that
they could only be terminated for cause.”106
Not only does Plaintiff’s due process claim fail for lack of a protected
interest, but it also fails because he nevertheless received adequate notice and due
process. Nothing in the amended complaint can be interpreted to say that Mr.
Sundberg was not put on notice of the job postings, afforded appropriate
evaluations for prior coaching season, or invited to meetings to discuss the School
District’s concerns and recommendations. In fact, that precise due process giveand-take is exactly what this lawsuit is premised upon.
Due process does not require flawless or perfect process. Neither does it
require courtesy. Constitutionally adequate process alone suffices. Accordingly, in
light of the foregoing discussion, Plaintiff’s due process claim is also dismissed
Defendants’ Motion To Dismiss Is Granted As To Plaintiff’s
Claim For Injunctive Relief.
In a separate count contained within his amended complaint, the Plaintiff
attempts to state a claim for injunctive relief. This claim fails for two reasons. First,
Id. at 406.
149 F. Supp. 3d 530, 539 (E.D. Pa. 2016), aff’d, No. 16-1720, 2017 WL 1906744 (3d Cir.
May 9, 2017).
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having determined that the Plaintiff’s First and Fourteenth Amendment rights have
not been violated, there is “no longer a live dispute which would warrant”
preliminary or permanent injunctive relief.107
Second, the Third Circuit has previously held that “injunctive relief is a
remedy rather than a cause of action.”108 A number of other courts have reached
similar conclusions.109 While the plaintiff is able to “request injunctive relief in
connection with a substantive claim,”110 asserting injunctive relief as a separate
claim is “inappropriate.”111
Even if Mr. Sundberg’s earlier claims had not been dismissed, a permanent
injunction would still be inappropriate. A plaintiff must satisfy the well-known
four-factor test in order to prove entitlement to a permanent injunction. In
particular, the plaintiff must demonstrate (1) that it has suffered an irreparable
injury; (2) that remedies available at law, such as monetary damages, are
inadequate to compensate for that injury; (3) that, considering the balance of
Chruby v. Kowaleski, 2012 WL 12875987 (W.D. Pa. June 5, 2012).
Chruby v. Kowaleski, 534 Fed.Appx. 156, 160 (3d Cir. 2013).
Tolia v. Dunkin Brands, No. 11–3656 JLL, 2011 WL 6132102, at *6 n. 5 (D.N.J. Oct. 7,
2011) report and recommendation adopted, No. 11–3656 JLL, 2011 WL 6132271 (D.N.J.
Dec. 7, 2011) (citing nine cases from various courts holding that injunction is not a separate
cause of action).
Slemmer v. McGlaughlin Spray Foam Insulation, Inc., 955 F.Supp.2d 452, 465 (E.D. Pa.
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hardships between the plaintiff and defendant, a remedy in equity is warranted; and
(4) that the public interest would not be disserved by a permanent injunction.112
The Plaintiff has not alleged sufficient facts to survive a motion to dismiss as
to injunctive relief. Indeed, he has not pled facts that would establish the elements
for a permanent injunction. His conclusory statements that the individual
Defendants have violated his constitutional rights do not state a claim for relief
warranting injunctive relief.
Because the Plaintiff’s claims under the First and Fourteenth Amendments
have been dismissed, and because injunctive relief is more accurately formulated
as a remedy rather than a cause of action, the Defendants’ motion to dismiss is
granted with prejudice as to that particular claim for relief as well.
Plaintiff Has Not Pled Sufficient Facts To Plausible State A Claim
Against The School Board.
Under Monell v. New York City Dept. of Social Servs., “a school board can
be held responsible for a constitutional violation . . . only if the violation occurred
as a result of a policy, custom or practice established or approved by the
board.”113 “However, a school board cannot be held liable for a constitutional
violation under a respondeat superior theory.”114 Instead, the plaintiff must allege
eBay Inc. v. MercExchange, L.L.C., 547 U.S. 388 (2006).
C.H. v. Oliva, 226 F.3d 198, 202 (3d Cir.2000) (citing 436 U.S. 658 (1978)).
George v. Bd. of Educ. of the Twp. of Millburn, 34 F. Supp. 3d 442, 458 (D.N.J. 2014).
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that the school board “established or approved a policy, custom, or practice” or
“effectively turn[ed] a blind eye” to the complained-of conduct.115
“Proof of a single incident of unconstitutional activity is not sufficient to
impose liability under Monell, unless proof of the incident includes proof that it
was caused by an existing, unconstitutional municipal policy, which policy can be
attributed to a municipal policymaker.”116 “Otherwise the existence of the
unconstitutional policy, and its origin, must be separately proved.”117
Plaintiff does not plead sufficient facts to suggest that the School Board
implemented the kind of policy required by Monell. Indeed, certain allegations
contained in the amended complaint make clear that the individual Defendants
acted “without consulting with the School Board.”118 In addition to their failure on
the merits as discussed above, the Plaintiff’s claims against the School Board are
dismissed with prejudice on this parallel ground as well.
The Defendants Are Entitled To Sovereign Immunity As To Each
Of Plaintiff’s Claims.
I also hold that Plaintiff’s claims fail for yet another reason: even if Plaintiff
could establish that his constitutional rights were violated, the Defendants are
City of Oklahoma City v. Tuttle, 471 U.S. 808, 823–24 (1985).
Id. See also Anything to Rent Lease Wholesale, Inc. v. Hughesville Borough, No. 4:16-CV00895, 2017 WL 736859, at *5 (M.D. Pa. Feb. 24, 2017).
Am. Compl. ¶ 73.
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entitled to qualified immunity. Qualified immunity protects government officials
from “liability for civil damages insofar as their conduct does not violate clearly
established statutory or constitutional rights of which a reasonable person would
have known.”119 Such immunity attaches to officials whether the official’s actions
were a mistake of law, of fact, or a combination of the two.120 A primary purpose
of the qualified immunity doctrine is to shield an official from personal liability
when that official “reasonably believes that his or her conduct complies with the
When examining whether or not qualified immunity is appropriate, courts
considers two issues. The first is whether the official’s conduct violated a
constitutional or federal right.122 The second is whether the right at issue was
clearly established.123 A right has been clearly established when that right’s
contours are “sufficiently clear that a reasonable official would understand that
what he is doing violates that right.”124 The unlawfulness of the act in question
Harlow v. Fitzgerald, 457 U.S. 800, at 818 (1982).
Groh v. Ramirez, 540 U.S. 551, at 567 (2004).
Pearson v. Callahan, 555 U.S. 223, at 244 (2009).
Sharp v. Johnson, 669 F.3d 144, at 159 (3d Cir. 2012) (citing Saucier v. Katz, 553, U.S. 194,
at 201 (2001)).
Anderson v. Creighton, 483 U.S. 635, at 640 (1987).
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must be apparent to a reasonable person in order to decide that qualified immunity
would be inappropriate.125
Further, the Supreme Court requires district courts to exercise their
discretion in determining which of the two Saucier prongs above should be
addressed first in light of the facts of any given case. In Pearson, Justice Samuel
Alito explained that “while the sequence set forth [in Saucier] is often appropriate,
it should no longer be regarded as mandatory.”126 Instead, the Court instructed that
“the judges of the district courts and the courts of appeals should be permitted to
exercise their sound discretion in deciding which of the two prongs of the qualified
immunity analysis should be addressed first in light of the circumstances in the
particular case at hand.”127
This Court has already addressed its decision as to the constitutionality and
statutory validity of the Defendants’ actions, and has found that those actions did
not violate any constitutional or federal rights. As such, qualified immunity could
be granted on that basis alone, because the Plaintiff is required to establish both
prongs of the Saucier test. The Court will, however, reach a determination on the
second prong for the record.
Id. (citing Malley v. Briggs, 475 U.S. 335, at 344–45 (1986)).
Pearson, 555 U.S. at 236.
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Plaintiff’s allegations do not give rise to any reasonable inference that such
rights were clearly established. In fact, Plaintiff’s attempts to strip away
Defendants’ entitlement to qualified immunity are expressed “at much too high a
level of abstraction”—in clear contravention of the Third Circuit’s recent decision
in Zaloga v. Borough of Moosic.128 In Zaloga, the Third Circuit made clear that “it
is not sufficient to conclude” that a generalized right against government
interference with a protected right exists.129 Rather, the district court “must attend
to context” and “consider . . . the circumstances confronting [the state actor]” at
that particular moment in time.130 This construction ensures that judges remain
focused upon the core question in qualified immunity cases: “whether a reasonable
state actor could have believed his conduct was lawful.”131
“Public school officials are entitled to qualified immunity against
constitutional claims when their conduct did not violate clearly established
statutory or constitutional rights of which a reasonable person would have
known.”132 Thus, the narrow question as far as qualified immunity is concerned is
whether reasonable school officials in the position of each Defendant here would
841 F.3d 170, 175 (3d Cir. 2016) (Jordan, J.).
Mohammed ex rel. Mohammed v. Sch. Dist. of Philadelphia, 355 F. Supp. 2d 779, 788 n.49
(E.D. Pa. 2005), aff'd sub nom. Mohammed v. Sch. Dist. of Philadelphia, 196 F. App’x 79
(3d Cir. 2006).
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have understood beyond debate that their refusing to renew a one-year athletics
contract violated a coach’s constitutional rights—where that coach had previously
made statements regarding administration of the School District’s athletics
As the Third Circuit has explained, qualified immunity will attach absent “a
robust consensus of cases” suggesting otherwise.133 That robust consensus of cases
is entirely absent here. Indeed, were I to deny the application of qualified immunity
here, it would be difficult to foresee circumstances in which qualified immunity
would ever apply in the context of academic employment decisions. Not only was
the underlying conduct not unlawful but it was not commemorated by sufficient
case law to the contrary warranting the stripping away of this core federalist
protection. Accordingly, the motion to dismiss could be granted on this
independent ground alone.
Defendants’ Motion to Dismiss Granted With Prejudice, Because
Subsequent Amendment Would Be Futile And Because Plaintiff
Has Already Had Opportunity to Re-plead.
Federal Rule of Civil Procedure 15 sets forth the mechanisms for amending
a pleading prior to trial. Section 15(a)(1) applies to amendments as a matter of
course. Section 15(a)(2), entitled “Other Amendments,” explains that “[i]n all other
cases, a party may amend its pleading only with the opposing party’s written
Spady v. Bethlehem Area Sch. Dist., 800 F.3d 633, 639 (3d Cir. 2015) (Vanaskie, J.).
- 40 -
consent or the court’s leave. The court should freely give leave when justice so
The Third Circuit has “previously discussed when a court may deny leave to
amend under Rule 15(a)(2).”134 In Shane v. Faver, for example, then Circuit Judge
Samuel A. Alito, Jr. stated that “[a]mong the grounds that could justify a denial of
leave to amend are undue delay, bad faith, dilatory motive, prejudice, and
futility.”135 “‘Futility’ means that the complaint, as amended, would fail to state a
claim upon which relief could be granted.”136 “In assessing futility, the District
Court applies the same standard of legal sufficiency as applies under Rule
“Moreover, substantial or undue prejudice to the non-moving party is a
sufficient ground for denial of leave to amend.”138 “The issue of prejudice requires
that we focus on the hardship to the [opposing party] if the amendment were
permitted.”139 “Specifically, we have considered whether allowing an amendment
Holst v. Oxman, 290 F. App’x 508, 510 (3d Cir. 2008).
Shane v. Faver, 213 F.3d 113, 115 (3d Cir. 2000) (quoting In re Burlington Coat Factory
Sec. Litig., 114 F.3d 1410, 1434 (3d Cir.1997) (Alito, J.).
Shane, 213 F.3d at 115.
Cureton v. Nat’l Collegiate Athletic Ass’n, 252 F.3d 267, 273 (3d Cir. 2001).
- 41 -
would result in additional discovery, cost, and preparation to defend against new
facts or new theories.”140
“The decision to grant or deny leave to amend a complaint is committed to
the sound discretion of the district court.”141 “Factors the trial court may
appropriately consider in denying a motion to amend include undue delay, undue
prejudice to the opposing party, and futility of amendment.”142 For instance, “if the
proposed change clearly is frivolous or advances a claim or defense that is legally
insufficient on its face, the court may deny leave to amend.”143
Dismissal of Plaintiff’s First and Fourteenth Amendment claims with
prejudice is warranted on two separate grounds. First, the Plaintiff has already had
the opportunity to re-plead following the filing of the first motion to dismiss.144
Second, further amendment would be futile. After the Defendants filed their first
motion to dismiss and briefed the issues, the Plaintiff chose to amend his pleadings
Coventry v. U.S. Steel Corp., 856 F.2d 514, 518 (3d Cir. 1988).
Averbach v. Rival Mfg. Co., 879 F.2d 1196, 1203 (3d Cir. 1989) (quoting Foman v. Davis,
371 U.S. 180, 182 (1962).
Ross v. Jolly, 151 F.R.D. 562, 565 (E.D. Pa. 1993) (citing 6 Wright, Miller, & Kane, Federal
Practice & Procedure: Civil 2d § 1487). See also Vosgerichian v. Commodore Int’l Ltd., No.
Civ. A. 92-CV-4867, 1998 WL 966026, at * 3 (E.D. Pa. Nov 6, 1998) aff’d sub nom
Vosgerichian v. Commodore Int’l, 191 F.3d 446 (3d Cir. 1999).
The first motion to dismiss is denied as moot because it covered similar but less than all
substance compared to that contained in the renewed motion to dismiss. See Schoonmaker v.
Hubner, No. CIV. A. 92-5471, 1993 WL 311776, at *10 (E.D. Pa. Aug. 9, 1993) (“[T]he
filing of the amended complaint technically moots defendants' motions to dismiss the
- 42 -
rather than file a response brief. The amended complaint did little if anything to
address the arguments raised by defense counsel, despite Plaintiff’s counsel having
been put on notice of the initial complaint’s defects.
Because the Plaintiff has already had the opportunity to replead and further
amendment would be futile in my judgment, Defendants’ motion to dismiss is
granted with prejudice.
Ultimately, I reiterate that my narrow role in this matter is not to judge
whether Mr. Sundberg acted appropriately or whether the School District treated
him civilly. Those are questions that fall beyond my jurisdiction. The narrow
question this litigation presents is whether the School District’s decision not to
rehire Mr. Sundberg as a coach violated his constitutional rights. The sparse
complaint did not make those violations plausible and certainly cannot “unlock the
doors of discovery for a plaintiff armed with nothing more than conclusions.”145
An appropriate Order follows.
BY THE COURT:
s/ Matthew W. Brann
Matthew W. Brann
United States District Judge
Iqbal, 556 U.S. at 678–79.
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