Rossetti v. Shapiro et al

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UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF PENNSYLVANIA
BELINDA J. ROSSETTI,
Plaintiff,
v.
JOSHUA D. SHAPIRO, et al.,
Defendants.
: 	NO. 1:25-CV-00422
:
: 	(MUNLEY, D.J.)
:
: 	(CAMONI, M.J.)
:
:
:
REPORT AND RECOMMENDATION
The Court of Appeals for the Third Circuit has recognized a First
Amendment right to record police activity in public. But it has not, nor
has any other circuit, recognized a right to record private telephone
conversations of private individuals. The Plaintiff believes that she has a
right to do so, and that the United States Constitution should vindicate
that 	right 	against 	a 	Pennsylvania 	criminal 	statute 	that 	prohibits
nonconsensual 	audio 	recording. 	Because 	no 	such 	right 	exists, 	the
Plaintiff has no standing to bring her claim.
Pending before the Court is Defendants Joshua Shapiro and David
Sunday’s motion to dismiss pro se Plaintiff Belinda Rossetti’s Complaint.
Doc. 10. The undersigned respectfully recommends the Court dismiss the
Complaint without prejudice for the reasons that follow.
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I. 	BACKGROUND 1
The 	undersigned 	will 	briefly 	summarize 	the 	salient 	factual
background, 	as 	the 	Complaint 	refers 	to 	numerous 	entities 	and
individuals who are not parties to this action and are irrelevant to the
Plaintiff’s claims.
A. 	Factual Background
Rossetti is mother to a son who attended Pennsylvania State
University (PSU) sometime between 2020 and 2023. See Doc. 1 ¶¶ 18, 34,
38, 44, 59. While paying college expenses and trying to lease apartments
for her son, Rossetti was defrauded by property management companies
and PSU, none of whom are parties to this action. Id.2
1 In considering this motion to dismiss, the Court accepts all factual
allegations in the Complaint as true. See Phillips v. County of Allegheny,
515 F.3d 224, 228 (3d Cir. 2008).
2 Rossetti alleges two types of fraud. First, Rossetti rented apartments
that 	were 	fraudulently 	leased 	by 	non-party 	property 	management
companies. Doc. 1 ¶¶ 18-19; see id. ¶ 38 (emphasis in original) (“In August
2021, PLAINTIFF’S son rented another apartment . . . . PLAINTIFF
discovered an identical fraud scheme upon move-in.”); id. ¶ 61 (describing
similar lease related fraud that cost the Plaintiff money). Second, she
alleges that Penn State fraudulently billed her son and that it failed to
address her attempts to dispute those charges. See id. ¶¶ 43-46, 52-53.
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Rossetti took actions to address the alleged frauds. First, she filed
a lawsuit in Illinois against the non-party entities. Id. ¶ 20. Second, she
reported the fraud to the Pennsylvania Attorney General’s Office for
investigation. Id. ¶ 24. And third, she obtained evidence of the fraudulent
activities by recording telephone conversations of Penn State employees
discussing and confirming the fraud and reported the fraud to State
College Police Department. See id. ¶¶ 41, 46, 48.
Rossetti faced hurdles at every turn. First, Defendant Shapiro, then
Attorney General of Pennsylvania, refused to initiate an investigation or
prosecute the non-party entities, citing that Rossetti had already filed a
federal civil lawsuit. Id. ¶ 26. Rossetti alleges that Shapiro selectively
enforced the law by prosecuting similar fraud cases while refusing to
investigate her case. Id. ¶ 29.
Second, 	Pennsylvania’s 	criminal 	statute, 	18 	Pa. 	C.S. 	§ 5703,
prevented Rossetti from recording additional evidence to expose Penn
State’s 	fraudulent 	practices. 	Id. 	¶ 48. 	Third, 	State 	College 	Police
dismissed her reports of fraud as a civil matter and warned her that
recording conversations in Pennsylvania is illegal. Id. ¶¶ 31-32.
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B. 	Procedural History
On March 6, 2025, Rossetti lodged the instant Complaint and
moved for leave to proceed in forma pauperis. Docs. 1, 5. Her motion was
granted, 	the 	Complaint 	filed, 	and 	the 	Defendants 	served 	with 	the
pleadings. Docs. 6, 8. Rossetti sued the Defendants under 42 U.S.C.
§ 1983, alleging that Pennsylvania’s criminal law, 18 Pa. C.S. § 5703,
violates 	her 	rights 	under 	the 	First, 	Fourth, 	Fifth 	and 	Fourteenth
Amendments. Doc. 1 ¶ 1. She further alleges that the Defendants’ failure
to investigate violates her constitutional rights. Id. ¶ 4.
The Defendants moved to dismiss the Complaint, doc. 10, and the
motion 	is 	fully 	briefed, 	docs. 	12, 	13. 	Thus, 	the 	motion 	is 	ripe 	for
resolution.
II. 	LEGAL STANDARD
The Federal Rules of Civil Procedure require “a short and plain
statement of the claim showing that the pleader is entitled to relief.” Fed.
R. Civ. P. 8(a)(2). On a Rule 12(b)(6) motion to dismiss, “a plaintiff’s
obligation to provide the grounds of his entitlement to relief requires
more than labels and conclusions, and a formulaic recitation of the
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elements of a cause of action will not do.” Bell Atl. Corp. v. Twombly, 550
U.S. 544, 555 (2007) (citation modified).
A 	district 	court 	must 	conduct 	a 	three-step 	analysis 	when
considering the sufficiency of a complaint under Rule 12(b)(6). Malleus v.
George, 641 F.3d 560, 563 (3d Cir. 2011). First, the court must identify
“the elements a plaintiff must plead to state a claim.” Ashcroft v. Iqbal,
556 U.S. 662, 675 (2009). Second, the court must identify all of the
plaintiff’s well-pleaded factual allegations, accept them as true, and
“construe the complaint in the light most favorable to the plaintiff.”
Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d Cir. 2009). The court
can discard bare legal conclusions or factually unsupported accusations
that merely state the defendant unlawfully harmed the plaintiff. Iqbal,
556 U.S. at 678, citing Twombly, 550 U.S. at 555. Third, the court must
determine whether “the facts alleged in the complaint are sufficient to
show that the plaintiff has a ‘plausible claim for relief.’” Fowler, 578 F.3d
at 211, quoting Iqbal, 556 U.S. at 679. A facially plausible claim “allows
the court to draw the reasonable inference that the defendant is liable for
the misconduct alleged.” Id. at 210, quoting Iqbal, 556 U.S. at 678. On a
Rule 12(b)(6) motion, the “defendant bears the burden of showing that no
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claim has been presented.” Hedges v. United States, 404 F.3d 744, 750
(3d Cir. 2005).
A complaint filed by a pro se litigant is to be liberally construed and
“however inartfully pleaded, must be held to less stringent standards
than formal pleadings drafted by lawyers.” Erickson v. Pardus, 551 U.S.
89, 	94 	(2007), 	quoting 	Estelle 	v. 	Gamble, 	429 	U.S. 	97, 	106 	(1976).
Nevertheless, “pro se litigants still must allege sufficient facts in their
complaints to support a claim.” Mala v. Crown Bay Marina, Inc., 704 F.3d
239, 245 (3d Cir. 2013).
III. 	ANALYSIS
The Complaint boils down to two main claims: (1) Rossetti’s First
Amendment challenge to Pennsylvania’s criminal statute, 18 Pa. C.S.
§ 5703; and (2) her Fourteenth Amendment claim against the Defendants
for selective enforcement. 3 The undersigned addresses each in turn.
3 Rossetti also alleges Fourth and Fifth Amendment violations. Doc. 1
¶¶ 143-44, 146-49. The undersigned has reviewed these claims and finds
them meritless as the Complaint does not allege a search or seizure nor
a taking subject to the Takings Clause.
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A. 	Standing
Before 	considering 	the 	merits 	of 	Rossetti’s 	First 	Amendment
challenge, the Court must first consider whether she has standing.
McCauley v. Univ. of the V.I., 618 F.3d 232, 238 (3d Cir. 2010). Although
the Defendants did not raise an issue of standing, the Court’s “continuing
obligation” to assure that it has jurisdiction requires that it raises issues
of standing sua sponte. Seneca Resources Corp. v. Township of Highland,
863 F.3d 245, 252 (3d Cir. 2017), quoting Ehleiter v. Grapetree Shores,
Inc., 482 F.3d 207, 211 (3d Cir. 2007).
Article 	III 	of 	the 	Constitution 	limits 	federal 	courts 	to 	the
adjudication of cases or controversies. U.S. Const. art. III, § 2. Courts
meet 	the 	case-or-controversy 	requirement 	through 	the 	justiciability
doctrines. 	Allen 	v. 	Wright, 	468 	U.S. 	737, 	750 	(1984). 	Justiciability
doctrines include “standing, ripeness, mootness, the political question
doctrine, and the prohibition on advisory opinions.” Toll Bros., Inc. v.
Township of Readington, 555 F.3d 131, 137 (3d Cir. 2009).
Standing 	doctrine 	consists 	of 	three 	elements 	that 	form 	an
“irreducible constitutional minimum” necessary to invoke the jurisdiction
of this Court. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992). It
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requires 	a 	plaintiff 	to 	demonstrate: 	(1) 	a 	concrete, 	particularized
injury-in-fact, which must be actual or imminent, not conjectural or
hypothetical; (2) causation; and (3) a likelihood that a favorable decision
would redress the injury. See id.
When, as in this case, a plaintiff challenges a law pre-enforcement,
the Third Circuit applies a specialized test to discern whether the
injury-in-fact, i.e. the threat of enforcement, is imminent. Nat’l Shooting
Sports Foundation v. Att’y Gen., 80 F.4th 215, 219 (3d Cir. 2023), citing
Susan B. Anthony List v. Driehaus, 573 U.S. 149, 158 (2014). Plaintiffs
bringing a pre-enforcement challenge must show: (1) intent to take action
that is; (2) arguably affected with a constitutional interest 4 but is; (3)
arguably forbidden by the Law; and (4) the threat of enforcement against
them is substantial. Id.
Here, Rossetti fails to demonstrate that she has standing. She fails
to satisfy the injury-in-fact and redressability requirements because she
fails to allege a concrete plan of action and alleges that she has already
made audio recordings. Doc. 1 ¶ 31. First, she does not allege that she
4 As discussed below, Rossetti cannot show that the action is protected by
the First Amendment, further demonstrating a lack of standing.
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intends to take a constitutionally protected action forbidden by law under
a substantial threat of enforcement, failing entirely to meet the National
Shooting 	Sports 	Foundation 	test. 	Second, 	she 	alleges 	that 	she 	has
already recorded conversations of the alleged perpetrators while she was
located in Illinois. Id.; see also id. ¶ 46 (stating that Rossetti captured
statements of Penn State staff members that are related to fraud). That
calls 	into 	question 	whether 	Rossetti 	intends 	to 	continue 	recording
conversations with alleged perpetrators from Pennsylvania.
Importantly, Rossetti does not allege any facts as to what she plans
to do, whether she intends to continue recording individuals within the
state of Pennsylvania, or how her constitutionally protected conduct will
be prohibited in the future. Thus, without an allegation that she plans to
or needs to continue recording conversations within Pennsylvania and
will be prohibited by the future enforcement of 18 Pa. C.S. § 5703,
Rossetti fails to demonstrate an imminent threat of enforcement.
Rossetti does allege that she was prohibited from lawfully recording
additional evidence by a State College police officer who warned her that
recording conversations is illegal in Pennsylvania. Doc. 1 ¶¶ 32, 48. She
claims that the interaction and Pennsylvania’s wiretap law creates a
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chilling effect. Id. ¶ 108. Yet “an allegation that certain conduct has (or
will have) a chilling effect on one’s speech must claim a . . . threat of
specific future harm.” Nat’l Shooting Sports Foundation, 80 F.4th at 220,
citing Sherwin-Williams Co. v. County of Delaware, 968 F.3d 264, 269-70
(3d Cir. 2020). Rossetti “must do more than assert ‘subjective chill.’” Id.,
quoting Clapper v. Amnesty Int’l USA, 568 U.S. 398, 418 (2013). This
singular interaction does not change the fact that Rossetti has already
obtained 	the 	recordings 	that 	she 	wants. 	Therefore, 	Rossetti 	lacks
standing.
B. 	First Amendment Right
Central to the idea of standing is whether Rossetti has a First
Amendment right to record a private telephone conversation. Because
that right is not a recognized First Amendment right, Rossetti cannot
allege a cognizable First Amendment injury nor redressability.
Neither the Supreme Court nor the Third Circuit has addressed
whether there is an established First Amendment right to record a
private telephone conversation. The Third Circuit has recognized only
that “recording police activity in public falls squarely within the First
Amendment 	right 	of 	access 	to 	information.” 	Fields 	v. 	City 	of
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Philadelphia, 862 F.3d 353, 359 (3d Cir. 2017). Even for the limited right
to record police in public, the Third Circuit cautioned that not “all
recording is protected or desirable,” and the right to record is subject to
reasonable restrictions on time, manner, and place. Id. at 360.
Outside of the Third Circuit, some courts have recognized a First
Amendment right to make a nonconsensual audio recording. Pitta v.
Medeiros, 90 F.4th 11, 19 (1st Cir. 2024); Project Veritas v. Schmidt, 125
F.4th 929, 940, 943 (9th Cir. 2025). Those courts, however, still carefully
confined that right to recording “police officers discharging their official
duties in public spaces,” Pitta, 90 F.4th 19, or for “conversations in
connection with [a news agency’s] newsgathering activities.” Schmidt,
125 F.4th at 943. No courts have recognized a First Amendment right to
record non-consensual, non-public, telephone conversations.
Here, Rossetti does not allege that she attempted or plans to record
a police officer as the plaintiff did in Fields. Doc. 1 ¶¶ 22, 46; Fields, 862
F.3d at 359. She wanted to record telephone conversations of staff
members who work at a state college. Doc. 1 ¶¶ 22, 46. And those
conversations take place in private, not in a public space. Id.
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Because Rossetti does not have a First Amendment right to record
non-consensual, private conversations of private individuals, Rossetti’s
First 	Amendment 	challenge 	fails 	at 	the 	threshold. 	See 	Credico 	v.
Krenitsky, 845 F. App’x 196, 197-98 (3d Cir. 2021) (per curiam) (finding
that a plaintiff who was denied from recording a meeting using his phone
did not have a First Amendment right to record because the meeting was
private and he was able to record the events of the meetings through
other means such as taking notes); 	see also Jones v. Gaydula, No.
85-1859, 1989 WL 156343, at *2 (E.D. Pa. Dec. 22, 1989) (concluding
there is no First Amendment right to tape record the statements of an
unwilling utterant), aff’d, Appeal of Gaydula, No. 90-1077, 919 F.2d 730
(Table) (3d Cir. 1990).
C. 	Fourteenth Amendment—Selective Enforcement
Rossetti also alleges that the Defendants, in refusing to prosecute
the fraud she allegedly suffered, are selectively enforcing the law. Doc. 1
¶¶ 26, 29.
Selective discriminatory enforcement of a facially valid law is
unconstitutional under the Equal Protection Clause of the Fourteenth
Amendment. Jewish Home v. Ctrs. for Medicare & Medicaid Servs., 693
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F.3d 359, 363 (3d Cir. 2012). To establish a selective enforcement claim,
a plaintiff must show: (1) that she was treated differently from another
similarly situated individual; and (2) that this selective treatment was
based on an unjustifiable standard, such as race, or religion, or some
other arbitrary factor, or to prevent the exercise of a fundamental right.
Id., quoting Dique v. N.J. State Police, 603 F.3d 181, 184 n.5 (3d Cir.
2010). 	Hence, 	to 	maintain 	an 	equal 	protection 	claim 	of 	selective
enforcement, a plaintiff must provide evidence of discriminatory purpose,
not mere unequal treatment or adverse effect. Id., citing Snowden v.
Hughes, 321 U.S. 1, 8 (1944).
Here, 	Rossetti 	states 	no 	facts 	to 	show 	that 	she 	was 	treated
differently from another similarly situated individual or that there were
signs of “clear and intentional discrimination.” Snowden, 321 U.S. at 8.
In a conclusory fashion, Rossetti alleges that Defendant Shapiro “actively
prosecuted similar fraud cases.” Doc. 1 ¶ 29. But Rossetti fails to allege
facts as to what those fraud cases were, or which individuals were
similarly situated victims of the kind of fraud Rossetti suffered. The
Complaint, 	then, 	“demonstrates 	only 	that 	in 	some 	instances,” 	the
Defendants prosecuted fraud cases, while in others they did not, which
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“is insufficient to allege a systemic discriminatory purpose.” PG Pub. Co.
v. Aichele, 705 F.3d 91, 115 (3d Cir. 2013) (“The law cannot provide a
constitutional remedy for every situation where a party may feel slighted;
claims appealing to the Equal Protection Clause must meet a higher
bar.”). Accordingly, Rossetti fails to state a Fourteenth Amendment
selective enforcement claim.
IV. 	LEAVE TO AMEND
The Third Circuit instructs this Court to grant leave to amend when
an in forma pauperis plaintiff has filed a complaint subject to dismissal
under Rule 12(b)(6), unless amendment would be inequitable or futile.
Mullin v. Balicki, 875 F.3d 140, 151 (3d Cir. 2017); Grayson v. Mayview
State Hosp., 293 F.3d 103, 114 (3d Cir. 2002). Amendment in this case
would be futile as to her First Amendment challenge because Rossetti
cannot establish standing, but amendment would not be futile as to her
Fourteenth 	Amendment 	claim 	if 	she 	can 	allege 	facts 	sufficient 	to
establish a plausible claim.
Accordingly, the undersigned recommends that Plaintiff’s First
Amendment 	claim 	be 	dismissed 	with 	prejudice, 	and 	her 	selective
prosecution claim be dismissed without prejudice.
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V. 	RECOMMENDATION
Based on the foregoing, it is respectfully recommended that:
(1) 	The Defendants’ motion to dismiss (Doc. 10) be GRANTED;
(2) 	The Complaint be DISMISSED; the First Amendment claim
with prejudice, and the selective prosecution claim without
prejudice;
(3) 	The 	Plaintiff 	be 	granted 	leave 	to 	amend 	her 	selective
prosecution claim; and
(4) 	The Clerk of Court be directed to administratively CLOSE
this case.
The parties are further placed on notice that pursuant to Local Rule 72.3:
Any 	party 	may 	object 	to 	a 	magistrate 	judge’s 	proposed 	findings,
recommendations or report addressing a motion or matter described in
28 U.S.C. § 636 (b)(1)(B) or making a recommendation for the disposition
of a prisoner case or a habeas corpus petition within fourteen (14) days
after being served with a copy thereof. Such party shall file with the clerk
of court, and serve on the magistrate judge and all parties, written
objections which shall specifically identify the portions of the proposed
findings, recommendations or report to which objection is made and the
basis for such objections. The briefing requirements set forth in Local
Rule 72.2 shall apply. A judge shall make a de novo determination of
those 	portions 	of 	the 	report 	or 	specified 	proposed 	findings 	or
recommendations to which objection is made and may accept, reject, or
modify, in whole or in part, the findings or recommendations made by the
magistrate judge. The judge, however, need conduct a new hearing only
in his or her discretion or where required by law, and may consider the
record developed before the magistrate judge, making his or her own
determination on the basis of that record. The judge may also receive
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further 	evidence, 	recall 	witnesses, 	or 	recommit 	the 	matter 	to 	the
magistrate judge with instructions.
Date: January 16, 2026 	s/ Sean A. Camoni
Sean A. Camoni
United States Magistrate Judge
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