PHILADELPHIA – Two individuals who participated in an “Environmental Justice Day” march hold true to claims that they were assaulted on that occasion by Chester government officials, including the mayor and two members of borough council.
Tajah Jennings of Chester and Mike Ewall of Philadelphia first filed suit in the U.S. District Court for the Eastern District of Pennsylvania on June 16 versus the City of Chester, its Mayor Thaddeus Kirkland and its Councilwomen Portia West and Elizabeth Williams.
“On April 23, 2022, Chester residents and other activists met at Chester City Hall to participate in the second annual ‘Environmental Justice Day’ march. The protest, held the day after ‘Earth Day,’ was organized to protest the Covanta Delaware Valley trash incinerator, which is Chester City’s largest industrial air polluter and largest environmental violator. Covanta owns the trash incinerator in Chester and, according to data from the U.S. Environmental Protection Agency, is one of the largest polluters of its kind in the country,” the suit said.
“The protestors, including citizens of Chester, such as plaintiff and others, planned to march down Pennsylvania Route 291 from Chester City Hall to the incinerator. Protestors utilized the private parking spaces located at the Delaware County Historical Society (DCHS) with the express permission from the Executive Director of DCHS. When protestors arrived at City Hall on the morning of April 23, they were prevented from using the free parking lot located at City Hall by wooden horses, yellow police tape and two private security officers guarding the entrance to the lot. Parking authority vehicles and employees were parked at City Hall prior to protestors arriving on the morning of April 23.”
The suit added Williams gave the security officers instructions to not allow protestors to park in the parking lot at City Hall, and Kirkland, West and Williams gave instructions to parking authority officers to ticket the vehicles of individuals who participated in the protest, solely due to their participation.
The size and sound of the march attracted the attention of people along the route to ask questions about the cause, who were then given information to inform on the issue, the suit continued.
“Jennings lives along the route of the march and came outside to get information about the march and the issues surrounding it. Jennings was speaking with people involved in the march when she, Ewall and others were confronted by defendants Kirkland, West, Williams and others who had been driving behind the group of protestors in a black pickup truck. While seated in the drivers’ seat of the truck, defendant Kirkland used a loudspeaker to threaten Ewall and another protestor,” the suit stated.
“After threatening Ewall, Kirkland exited the truck and confronted Ewall. Jennings stepped in between Ewall and Kirkland to de-escalate the situation. Kirkland berated Ewall even as Jennings stood in between the two men. Ewall was holding his cell phone in his hands as if he was recording Kirkland berating him. Kirkland slapped Ewall’s hand to make him drop the phone and prevent him from recording the incident. After having his hand hit by Kirkland, Ewall’s phone flew from his hand and struck Jennings in the face, causing injury.”
The suit accused Chester officials of having taken retaliatory action, including issuing citations, against individuals exercising their First Amendment rights, and the quelling of the expression of those same rights by those same individuals.
The defendants filed a partial motion to dismiss on Sept. 7, seeking the dismissal of all claims by plaintiff Jennings, all claims against defendants West and Williams, the plaintiffs’ Monell claims against all defendants and all claims against the City of Chester.
“All claims by plaintiff Jennings should be dismissed. The Section 1983 claims should be dismissed because the complaint does not allege any retaliatory conduct directed against her. The state law claims – all intentional torts – should be dismissed, because the complaint does not allege any conduct directed towards her or intended to cause her harm,” the dismissal motion stated, in part.
“The sum total of defendant Jennings’ involvement is that she was struck by the phone when it flew from defendant Ewall’s hand. There is nothing about this interaction which suggests that the phone was intended to strike defendant Jennings, and certainly nothing that suggests that the phone striking her was in retaliation for her exercise of her First Amendment rights.”
The motion continued that “each of plaintiff Jennings’ state law claims require that the conduct in question be directed at her and be intended to cause her immediate fear of offensive bodily contact, offensive bodily contact and/or severe emotional distress”, and that the complaint “contains no such allegations.”
“Plaintiff Jennings presents state law claims against defendant Kirkland for assault, battery and intentional infliction of emotional distress in allegedly causing defendant Ewall’s phone to strike her in her face. These claims must be dismissed for the simple reason that the complaint plausibly pleads, at most, negligence, by defendant Kirkland in causing the phone to strike plaintiff Jennings. Since defendant Kirkland is alleged to be the Mayor of the City of Chester acting in the course and scope of his duties, the Political Subdivision Tort Claims Act immunizes Mayor Kirkland for all the claims at issue in the absence of ‘willful misconduct,” the motion stated.
“Rather, the complaint pleads that defendant Kirkland struck plaintiff Ewall’s phone from his hand, which then flew through the air and struck plaintiff Jennings. The complaint pleads no conduct directed towards plaintiff Jennings, and, at most, pleads negligent conduct directed towards her. In addition, it is clear that defendant Kirkland’s conduct does not qualify as ‘extreme and outrageous.’ For these reasons, all of plaintiff Jennings’ state law claims should be dismissed.”
As for the claims against defendants West and Williams, the motion explained that the plaintiff showed “no personal involvement [on their parts] in any alleged First Amendment retaliatory conduct directed against either plaintiff.”
Furthermore, the motion argued that all Monell claims be dismissed from the suit, along with all claims against the City of Chester.
“While plaintiffs obliquely refer to an alleged incidents involving defendants engaging in aggressive conduct designed to dissuade unnamed citizens from participating in lawful protest, plaintiffs plead no facts to support a single prior occurrence of such an incident. Plaintiffs do not plead when, to whom or under what circumstances this alleged incident or incidents occurred,” the motion said.
“They plead no facts to suggest that the alleged incidents resulted from insufficient training, improper discipline, or an unconstitutional policy or custom. While plaintiffs insist that defendants were aware of the prevalence of this type of conduct, they plead no facts whatsoever to suggest that the City was aware of any one such incident, or that discipline was merited and yet no provided. These vague reference do not even plead sufficient facts to identify one prior incident, much less a pattern. Plaintiffs have not pled a single fact in support of their Monell claim. Consequently, the Monell claim should be dismissed, including all claims against the City of Chester.”
UPDATE
The plaintiffs provided an opposing response to the dismissal motion on Sept. 21, maintaining their position that the defendants engaged in deprivation of their civil rights and committed assault and battery against them.
“Defendants contend that plaintiff Jennings’ Section 1983 claims should be dismissed because the complaint does not allege any retaliatory conduct directed against plaintiff Jennings. This claim is meritless. Defendants were following plaintiff Ewall and other protestors prior to their encounter with plaintiff Jennings. Defendants did not attempt to confront anyone until plaintiff Jennings began speaking with plaintiff Ewall and others. Defendant Kirkland then followed plaintiff Jennings to her home where he then stood outside of her door prior to fleeing before the police arrived. Defendant Kirkland then stalked plaintiff Jennings in his car the following day. A trier of fact could easily conclude that defendant Kirkland approached plaintiff Jennings as a continuation of his aggressive behavior after already causing her to be hit in the face,” the response stated, in part.
“A trier of fact could determine that these acts of aggression so closely followed plaintiff Jennings’s involvement in constitutionally-protected activity they were intentionally committed with the intent to intimidate and terrorize plaintiff Jennings participating in constitutionally protected activity and it caused her to retreat to her home, that such direct actions closely followed plaintiff Jennings involvement in constitutionally-protected activity and were intended to intimidate and terrorize plaintiff Jennings, to wit, that they were intentional and retaliatory in nature. Thus, the defendants’ contention that the complaint fails to allege conduct that is retaliatory in nature must be rejected.”
“Defendants did not attempt to confront anyone until plaintiff Jennings began speaking with plaintiff Ewall and others. Defendant Kirkland then followed plaintiff Jennings to her home where he then stood outside of her door prior to fleeing before the police arrived. Defendant Kirkland then stalked plaintiff Jennings in his car the following day. The defendants’ suggestion that ‘the complaint plausibly pleads, at most, negligence by defendant Kirkland’, who is protected by the Political Subdivisions Tort Claims Act (PSTCA), lacks merit. Individuals who engage in conduct that constitutes a crime or willful misconduct are not protected by the PSTCA. Defendant Kirkland intentionally smacked the phone from plaintiff Ewall’s hands and sent it hurtling into plaintiff Jennings’ face. Defendant Kirkland did not ‘negligently’ find himself on plaintiff Jennings’ front porch or ‘negligently’ shadow her in his car the following day. All the above acts were intentional and directed at plaintiff Jennings.”
For counts of retaliation against free expression and deprivation of rights under the First and Fourteenth Amendments to the U.S. Constitution, plus state law claims of assault, battery and intentional infliction of emotional distress, the plaintiffs are seeking a declaration that defendants violated plaintiffs’ civil rights, compensatory damages in excess of $75,000, pre-judgment interest, attorneys’ fees and costs, punitive damages against the individual defendants in their individual capacities; and such other legal and equitable relief as the Court deems just and proper.
The plaintiffs are represented by Riley H. Ross III, Thomas O. Fitzpatrick and Kevin V. Mincey of Mincey Fitzpatrick Ross, in Philadelphia.
The defendants are represented by Nicholas A. Cummins and Daniel B. Lengeman of Bennett Bricklin & Saltzburg, also in Philadelphia.
U.S. District Court for the Eastern District of Pennsylvania 2:22-cv-02372
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com