Joann Bristow v. Jacob C. Clevenger

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 01-1162
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JOANN BRISTOW
Appellant
v.
JACOB C. CLEVENGER AND
SPRING GARDEN TOWNSHIP
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ON APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
D.C. No. 00-cv-600
District Judge: The Honorable Sylvia H. Rambo
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Argued: December 11, 2001
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Before: BARRY, ALDISERT, Circuit Judges, and FULLAM,* District Judge
(Opinion Filed: February 22, 2002)
Donald A. Bailey, Esquire
4311 N. 6th Street
Harrisburg, PA 17110
Counsel for the Appellant
_________________
*The Honorable John P. Fullam, Senior District Judge of the Eastern District
of Pennsylvania, sitting by designation.
James D. Young, Esquire
301 Market Street, Suite 800
P.O. Box 1245
Harrisburg, PA 17108-1234
Counsel for Appellees
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OPINION OF THE COURT
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FULLAM, District Judge
This is an appeal from an Order of the District Court which, invoking Federal Rule
of Civil Procedure 12(b)(6), dismissed plaintiff-appellant’s complaint without leave to
amend. We have jurisdiction under 28 U.S.C. 1291. The defendants in the District

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Court were Jacob C. Clevenger, a Township police officer who was formerly married to
appellant Joann Bristow, and Mr. Clevenger’s employer, Spring Garden Township.
Plaintiff-appellant alleged that Mr. Clevenger was guilty of "stalking" her, and engaging
in other forms of harassment against her, in retaliation for her having successfully sued
him in an earlier civil rights action. She alleged that Mr. Clevenger acted in his capacity
as a police officer, while on duty and in uniform. She alleged that Spring Garden
Township failed to supervise Mr. Clevenger or control his activities, pursuant to a
longstanding practice of allowing him free rein in the township.
The complaint asserts violations of various constitutional provisions - the First,
Fourth, and Fourteenth Amendments are mentioned - and also refers to various tort claims
under state law, including intentional infliction of emotional distress.
In dismissing the complaint, the District Court appears to have construed the
pleading as attempting to assert a substantive due process claim under the Fourteenth
Amendment. Since the nine specific instances of harassment alleged in the complaint did
not disclose "concrete actions," but merely "verbal threats or abuse" and "being followed
and exposed to unpleasant facial expression," the court ruled that the complaint did not
state a valid substantive due process claim. The court then concluded:
"The court finds that the complaint fails to allege a federal
cause of action. The state law claims will not be addressed,
and the complaint will be dismissed." (A-12)
In reviewing the propriety of a Rule 12(b)(6) dismissal, we are required to accept
as true all of the factual allegations in the complaint and all reasonable inferences that can
be drawn from the face of the complaint. Nami v. Fauver, 82 F.3d, 63, 65 (3d Cir. 1996).
Dismissal cannot be upheld "unless it appears beyond a doubt that the plaintiff can prove
no set of facts in support of [her] claim that would entitle [her] to relief." Conley v.
Gibson, 355 U.S. 41, 45-46 (1957). A plaintiff is required to allege facts which
adequately support the claims asserted, but need not recite all of the evidence which will
be produced to establish these facts. "The complaint will be deemed to have alleged
sufficient facts if it adequately puts the defendants on notice of the essential elements of
the plaintiff’s cause of action." Nami, 82 F.3d 63, 65.
The complaint in this case appears to have been thrown together in some haste,
and does not reflect careful analysis. It is perhaps understandable that the district judge
gave it short shrift. The complaint refers, indiscriminately, to plaintiff’s "rights under th
Fourteenth Amendment due process clause to be free of unlawful retaliation against her
for successfully suing Jacob Clevenger"; her "First Amendment right to travel about
freely and go to work"; and her "Fourth Amendment right not to suffer extreme
harassment by stalking by a state official, and unlawful seizures." The complaint then
lists nine separate instances of alleged stalking, and alleges that they caused such things
as plaintiff’s "shaking with fear," being "badly shaken," and being "filled with fear."
After demanding "judgment of the defendants jointly and severally for emotional distress
and for the deprivation of [constitutional rights]," the complaint also demands judgment
"for harassment, stalking, invasion of privacy, intimidation, official oppression and the
intentional infliction of emotional distress as supplemental state claims."
The District Court was plainly correct in dismissing the complaint to the extent
that it asserted a "First Amendment right to travel about freely and go to work", and a
Fourth Amendment claim; the facts alleged in the complaint cannot be reasonably
interpreted as establishing any such constitutional violations. But dismissal of the
retaliation claim cannot, in our view, properly be upheld. The right of access to the courts
is protected by the First Amendment, California Motor Transport Co. v. Trucking
Unlimited, 404 U.S. 508, 510 (1972); Brown v. Grabowski, 922 F.2d 1097, 1111 (3d Cir.
1990). And retaliation for exercising a constitutionally protected right is, in itself, a
violation of constitutional rights; the retaliation need not be physical in nature, or rise to
the level of a substantive due process violation. See, e.g., Anderson v. Davila, 125 F.3d
148 (3d Cir. 1997) (retaliation consisting of surveillance). In Bradley v. Pittsburgh Board
of Education, 910 F.2d 1172 (3d Cir. 1990) this court upheld a claim of retaliation in the
form of a ban on plaintiff-teacher’s classroom activities, delay of return to work, etc. In
that case, Judge Sloviter noted "an action that would otherwise be permissible is
unconstitutional if it is taken in retaliation for the exercise of the right of access to the
courts." Id at 1177. Thus, regardless of whether the alleged harassment was sufficiently

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serious to trigger substantive due process concerns, it was error to dismiss the retaliation
claim on the basis of the pleadings..
Since the case must be remanded to the District Court, we leave to further
proceedings the final resolution of plaintiff’s due process claim; we note that appellant’s
brief in this Court argues that her complaint could readily be amended to remedy the
deficiencies perceived by the District Court. The state-law claims will also need to be
addressed, unless all federal claims prove to be subject to summary dismissal.
For the foregoing reasons, the order appealed from will be affirmed in part and
reversed in part, and the case remanded to the District Court for further proceedings.
TO THE CLERK OF THE COURT:
Kindly file the foregoing Opinion.
/s/ John P. Fullam
District Judg

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