Schneller v. Philadelphia Newspapers, Inc., CIVIL ACTION No. 11-5071

JAMES D. SCHNELLER and FRIENDS OF JIM SCHNELLER FOR CONGRESS, Plaintiffs,

v.PHILADELPHIA NEWSPAPERS, INC., et al, Defendants.

CIVIL ACTION No. 11-5071

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA

August 28, 2012

MEMORANDUM

Stengel, J.

This case arises from actions surrounding a congressional election. Plaintiff, James D. Schneller, brings claims against a number of Defendants, including Philadelphia Newspapers, under various federal and state laws alleging injury to reputation and violations of constitutional rights. Defendants filed various motions to dismiss, which I now address.

I. Background

Plaintiff was an independent candidate in the 2010 general election for Congress' 7th district of Pennsylvania. (Compl. at ¶ 1). "Friends of Jim Schneller" was the Plaintiff's registered candidate committee. (Compl. at ¶ 2). Schneller submitted Nomination Papers on August 2, 2010, in accordance with 25 P.S. § 2911(b).¹ Shortly thereafter, the Delaware County Republicans asserted that Democratic opponent, BryanLentz, and workers for the Democratic Party collected many of Schneller's signatures. (Compl. at ¶¶ 18-19).

Schneller alleges that the Defendants² then made these the "ongoing, headline fact of the race."³ (Compl. at ¶ 25). Specifically, Schneller alleges that one or more of the Defendants defamed Plaintiff by charging that Schneller had the Democrats to thank for getting on the ballot, that Schneller colluded with the democratic circulators, that Schneller was a "spoiler" who would split the Republican vote, and that Schneller's conduct was "wrong, unwise, or irresponsible." (Compl. at ¶¶ 20-21, 25). Schneller also asserts that one or more of the Defendants declared that Schneller was guilty of misrepresentation and fraud because he suggested a Tea Party leader supported his campaign, and that he violated the Federal Election Campaign Act. (Compl. at ¶¶ 53, 67). Throughout the campaign Schneller alleges that the Defendants labeled Schneller an "ultraconservative," a "candidate from the right," and a member of the Tea Party. (Compl. at ¶¶ 52, 59).⁴

The Defendants have filed motions to dismiss (Doc. Nos. 19, 20, &21). For the following reasons, I will grant these motions and dismiss this case.⁵

II. Standard

A motion to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure for failure to state a claim upon which relief can be granted examines the legal sufficiency of the complaint. Conley v. Gibson, 355 U.S. 41, 45-46 (1957). The factual allegations must be sufficient to make the claim for relief more than just speculative. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). In determining whether to grant a motion to dismiss, a federal court must construe the complaint liberally, accept all factual allegations in the complaint as true, and draw all reasonable inferences in favor ofthe plaintiff. Id.; see also D.P. Enters. v. Bucks County Cmty. Coll., 725 F.2d 943, 944 (3d Cir. 1984).

The Federal Rules of Civil Procedure do not require a plaintiff to plead in detail all of the facts upon which he bases his claim. Conley, 355 U.S. at 47. Rather, the Rules require a "short and plain statement" of the claim that will give the defendant fair notice of the plaintiff's claim and the grounds upon which it rests. Id. The "complaint must allege facts suggestive of [the proscribed] conduct." Twombly, 550 U.S. at 555. Neither "bald assertions" nor "vague and conclusory allegations" are accepted as true. See Morse v. Lower Merion School Dist., 132 F.3d 902, 906 (3d Cir. 1997); Sterling v. Southeastern Pennsylvania Transp. Auth., 897 F. Supp. 893 (E.D. Pa. 1995). The claim must contain enough factual matters to suggest the required elements of the claim or to "raise a reasonable expectation that discovery will reveal evidence of" those elements. Phillips v. County of Allegheny, 515 F.3d 224, 234 (3d Cir. 2008) (quoting Twombly, 550 U.S. at 555).

A case may be also dismissed under Rules 12(b)(1) and 12(h)(3) of the Federal Rules of Civil Procedure "[w]henever it appears by suggestion of the parties or otherwise that the court lacks jurisdiction of the subject matter. . . ." FED.R.CIV.P. 12(h)(3). Alternatively, a court choosing not to grant a motion to dismiss for lack of subject matter jurisdiction may, under Rule 12(e), grant a motion for a more definitive statement if "a pleading to which a responsive pleading is permitted is so vague or ambiguous that a party cannot reasonably be required to frame a responsive pleading. . . ." FED.R.CIV.P. 12(e).

Moreover, courts must liberally construe pro se complaints and "apply the applicable law, irrespective of whether [the] litigant has mentioned it by name." Higgins v. Beyer, 293 F.3d 683, 688 (3d Cir. 2002). Thus, a plaintiff's complaint, however inartfully pleaded, must be held to a less stringent standard than a formal pleading drafted by an attorney.⁶ Estelle v. Gamble, 429 U.S. 97, 106 (1976).

III. Discussion

A. Plaintiff Has Not Set Forth Facts Sufficient to State a Claim Under 42 U.S.C. § 1983

By its terms, Section 1983 does not create a substantive right; it merely provides a method for vindicating federal rights conferred by the United States Constitution and the federal statutes that it describes. Baker v McCollan, 443 U.S. 137 (1979). In order to establish a claim under Section 1983, a plaintiff must demonstrate (1) a violation of a right secured by the Constitution and the laws of the United States and that (2) the alleged deprivation was committed by a person acting under color of state law. American Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40 (1999).

Section 1983 excludes from its reach "merely private conduct," no matter how discriminatory or wrongful. American Mfrs. Mut. Ins. Co., 526 U.S. at 50. However, aprivate party may cause a deprivation of a constitutional right, but it is subjected to liability under Section 1983 only when it does so under color of law. Flagg Bros., Inc. v. Brooks, 436 U.S. 149, 156 (1978); West v. Atkins, 487 U.S. 42, 48 (1988). Moreover, when analyzing the exclusive government function test, the Supreme Court has held that the receipt of public funds and the performance of a function serving the public, alone, are not enough to make a private entity a state actor. Rendell-Baker v. Kohn, 457 U.S. 830, 840 (1982); Black, et al. v. Indiana School District, 985 F.2d 707, 710-11 (3d Cir. 1993) (a school bus driver is not performing an exclusive government function, even though paid by the state and performing a service for the public).

In Max v. Republican Committee of Lancaster County, 587 F.3d 198 (3rd Cir. 2009), a committee women sued the County Republican Committee alleging that her right to free speech was violated when she was reprimanded by the Committee for campaigning against endorsed candidates and asked to resign. Max, 587 F.3d at 199. The Court held that the Republican Committee of Lancaster County was not a state actor where it was merely the endorser of candidates and was not acting on behalf of or in concert with the Commonwealth of Pennsylvania.

Plaintiff claims that Defendant Bender is liable under § 1983 because Schneller claims he has "complete and unified control of the populace, in unison with the government," and, therefore, he is a state actor and acted under the color of state law. He alleges that all Defendants were "charged with the responsibility to maintain a qualified staff, establish procedures, and enforce adherence [...] to the standards and procedures of their profession [...] and to adhere to the statutory directive of the Constitution of theUnited States of America and acts of Congress and the Commonwealth of Pennsylvania..." (Compl. at ¶ 71).⁷

Here, Schneller fails to show that any of the Defendants is a state actor within the meaning of § 1983. Although a private entity that "is a willful participant in joint action with the State or its agents" acts "under color of state law" for purposes of § 1983, see Dennis v. Sparks, 449 U.S. 24, 27-28 (1980), there is no indication that the Commonwealth of Pennsylvania or one of its agents had any involvement in the actions alleged in the Complaint. Schneller has not demonstrated that "there is a sufficiently close nexus between the State and the challenged action of the regulated entity so that the action of the latter may be fairly treated as that of the State itself." Jackson v. Metropolitan Edison Co., 419 U.S. 345, 351 (1974). The traditional exclusive governmental function test requires that a private entity exercise powers traditionally and exclusively reserved to the State, such as exercising eminent domain. Wolotsky v. Huhn, 960 F.2d 1331, 1335 (6th Cir. 1992). Another factor to consider is whether the private party acted with the help or in concert with state officials. Mark v. Borough of Hatboro, 51 F.3d 1137, 1142 (3rd Cir. 1995).

Mr. Schneller baldly asserts that these Defendants were acting under color of law or were state actors but provides no supporting facts or reasoning. See Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (stating that "[a] pleading that offers [merely] labels andconclusions" or "naked assertions devoid of further factual enhancement" does not satisfy Fed. R. Civ. P. 8's pleading requirements). He claims that "Defendant party, committees, and media conglomerate acted under color of law and as state actors, and are a political subdivision... in unison with the government, including control of the dissemination of current events, commentary, and government policy...." (Compl. at ¶ 164).

Schneller alleges that Defendant Bender insinuated himself into a position of interdependence with the state to create joint participation, but this allegation is conclusory. Moreover, the activities of news organizations and reporters have consistently failed to satisfy the tests concerning state actors. See Scheetz v. Morning Call, Inc., 747 F. Supp. 1515, 1520 (E.D.Pa. 1990) (no liability in § 1983...