SYLVIA H. RAMBO, United States District Judge.
In this First Amendment action, Plaintiffs seek to strike down as unconstitutional a city ordinance requiring demonstrators to remain a certain distance from the entrances, exits, and driveways of health care facilities. Presently before the court are Plaintiffs' motion to preliminarily enjoin the enforcement of the ordinance, as well as Defendants' motion to dismiss Plaintiffs' claims. For the reasons stated herein, Plaintiffs' motion for a preliminary injunction will be denied, and Defendants' motion to dismiss will be granted in part and denied in part.
Factual and Procedural Background
Plaintiffs are individual citizens of Pennsylvania who regularly provide what they euphemistically refer to as "sidewalk counseling" outside of two health care facilities in Harrisburg, Pennsylvania that perform, among other procedures, abortions. (Doc. 1, ¶¶ 57-62.) Plaintiffs engage in leafletting, prayer, and individual conversations with women who are attempting to enter the health care facilities in an effort to dissuade them from obtaining abortions.
On November 13, 2012, Defendant Harrisburg City Council adopted Ordinance No. 12-2012 entitled "Interference With
On March 24, 2016, Plaintiffs filed a complaint alleging, inter alia, that the "buffer zones" created by the Ordinance make it impossible for them to effectively counsel or distribute literature in opposition to abortions at the Hillcrest Women's Health Center located on North Front Street (the "Hillcrest Clinic"), and the Harrisburg Medical Center on North Second Street, which is operated by Planned Parenthood (the "Planned Parenthood Clinic"), because the buffer zones cover much of the sidewalk surrounding the clinics and are not physically marked. (Doc. 1, ¶¶ 40-41, 44, 50, 56.) Plaintiffs argue that the Ordinance violates their First Amendment rights to freely speak, exercise their religion, and assemble, as well as their Fourteenth Amendment due process and equal protection rights. On March 25, 2016, Plaintiffs filed a motion to preliminarily enjoin the Ordinance due to the irreparable harm it causes to their First Amendment rights. (See Doc. 3.) In addition to opposing Plaintiffs' motion for a preliminary injunction, on April 26, 2016, Defendants filed a motion to dismiss for failure to state a claim. (Doc. 16.) Both motions have been fully briefed and are ripe for disposition.
Plaintiffs have moved for a preliminary injunction of the enforcement of the Ordinance on the basis that they are being irreparably harmed by the Ordinance's unconstitutional abrogation of their First Amendment right to engage in protected speech in public fora. Specifically, Plaintiffs argue that the Ordinance is a content-based restriction on protected speech because it only prohibits anti-abortion speech, and that it does not pass strict scrutiny because it is not narrowly tailored to serve a compelling state interest. Defendants have both opposed Plaintiffs' motion for a preliminary injunction and filed a motion to dismiss, arguing that the Ordinance is content-neutral and narrowly tailored to serve a significant government interest.
Plaintiffs expressly assert both facial and as-applied challenges to the Ordinance under the Free Speech, Free Exercise, and Free Assembly clauses of the First Amendment, as well as the Due Process and Equal Protection Clauses of the Fourteenth Amendment.
Because the disposition of both motions turns on the merits analysis of Plaintiffs' First Amendment claims, the court must address whether Plaintiffs have stated a free speech claim under the less rigorous 12(b)(6) standard before deciding if Plaintiffs have met the considerably more onerous burden required for the granting of a preliminary injunction.
Plaintiffs argue that the United States Supreme Court's holding in Reed v. Town of Gilbert, ___ U.S. ___, 135 S.Ct. 2218, 2226, 192 L.Ed.2d 236 (2015), requires that strict scrutiny be applied to the Ordinance because it discriminates based upon content by only prohibiting certain types of speech and "defining regulated speech by its function or purpose."
A regulation restricting speech is content-based if it: (1) "define[s] speech by particular subject matter"; (2) "define[s] regulated speech by its function or purpose"; or (3) cannot be justified "without reference to the content of the regulated speech" or was "adopted by the government `because of disagreement with the message [the speech] conveys.'" Reed, 135 S.Ct. at 2227 (citation omitted). "A law that is content-based on its face is subject to strict scrutiny regardless of the government's benign motive, content-neutral justification, or lack of `animus toward the ideas contained' in the regulated speech." Id. at 2228 (quoting Cincinnati v. Discovery Network, Inc., 507 U.S. 410, 429, 113 S.Ct. 1505, 123 L.Ed.2d 99 (1993)). Under strict scrutiny, the challenged law is "presumptively unconstitutional and may be justified only if the government proves that [it is] narrowly tailored to serve compelling state interests," Bruni, 824 F.3d at 363 (citing Reed, 135 S.Ct. at 2226), and the content-based restriction must be "the least restrictive or least intrusive means of serving the government's interests," McCullen v. Coakley, ___ U.S. ___, 134 S.Ct. 2518, 2535, 189 L.Ed.2d 502 (2014).
On the other hand, "[a] regulation that serves purposes unrelated to the content of expression is deemed neutral, even if it has an incidental effect on some speakers or messages but not others." Ward v. Rock Against Racism, 491 U.S. 781, 791, 109 S.Ct. 2746, 105 L.Ed.2d 661 (1989) (citing Renton v. Playtime Theatres, Inc., 475 U.S. 41, 47-48, 106 S.Ct. 925, 89 L.Ed.2d 29 (1986)). Intermediate scrutiny applies to such content-neutral restrictions, wherein the challenged law must be "narrowly tailored to serve a significant governmental interest." Madsen v. Women's Health Ctr., Inc., 512 U.S. 753, 764, 114 S.Ct. 2516, 129 L.Ed.2d 593 (1994). Under intermediate scrutiny, the restriction on speech need not be the least restrictive means available, but must "leave open ample alternative channels for communication." Ward, 491 U.S. at 791, 109 S.Ct. 2746 (citation omitted).
In McCullen v. Coakley, the United States Supreme Court reviewed a Massachusetts law, very similar to the Ordinance, which created a thirty-five foot buffer zone around the entrances and driveways of "reproductive health care facilit[ies]." McCullen, 134 S.Ct. at 2526. The McCullen Court found that the Massachusetts law was content-neutral because it did not require law enforcement to examine the content of speech to determine if individuals were violating the law, but simply where individuals were located. Id. at 2531 (citations omitted). The Court also found that the law's purposes of supporting "public safety, patient access to healthcare, and the unobstructed use of public sidewalks and roadways" were content-neutral. Id. (citing Boos v. Barry, 485 U.S. 312, 321, 108 S.Ct. 1157, 99 L.Ed.2d 333 (1988)) (finding "congestion," "interference with ingress or egress," and "the need to protect...security" as content-neutral concepts). The McCullen Court noted that "a facially neutral law does not become content based simply because it may disproportionately affect speech on certain topics. On the contrary, `[a] regulation that serves purposes unrelated to the content of expression is deemed neutral, even if it has an incidental effect on some speakers or messages but not others.'" Id. (citing Ward, 491 U.S. at 791, 109 S.Ct. 2746) (alteration in original). Rather, "[t]he question in such a case is whether the law is `justified without reference to the content of the regulated speech.'" Id. (citing Renton, 475 U.S. at 48, 106 S.Ct. 925) (further citation omitted) (emphasis removed); see also Brown v. City of Pittsburgh, 586 F.3d 263,
Here, the Ordinance's stated purpose is "to promote the health and welfare of [Harrisburg] residents and visitors to [Harrisburg]'s health care facilities, as well as the health and welfare of those who may wish to voice their constitutionally protected speech outside of such health care facilities." Harrisburg, Pa. Mun. Code, § 3-371.2C. Such a purpose has been repeatedly found by higher courts to be content-neutral, and, accordingly, the court finds that the Ordinance is not content-based on its face. Plaintiffs argue, nonetheless, that the Ordinance's prohibition on patrolling, picketing, or demonstrating makes it content-based under Reed's analytical framework because the Ordinance frustrates the purpose of Plaintiffs' speech. The court disagrees. In Hill v. Colorado, the Supreme Court found that a similar statute which prohibited engaging in "oral protest, education, or counseling" with individuals who were attempting to enter a health care facility was content-neutral, despite not restricting casual speech such as saying "good morning" in the same area. Hill, 530 U.S. at 724, 120 S.Ct. 2480. The Hill Court found the statute in question content-neutral because its "restrictions appl[ied] equally to all demonstrators, regardless of viewpoint, and the statutory language ma[de] no reference to the content of the speech." Id. at 719, 720, 120 S.Ct. 2480. In explaining that the statute furthered legitimate, content-neutral purposes, the Hill Court stated that:
Id. at 724.
Likewise, in Brown v. City of Pittsburgh, the Third Circuit held that another statute similar to the Ordinance, which made it illegal for individuals to "congregate, patrol, picket or demonstrate" within fifteen feet of any entrance to a hospital or health care facility, was content-neutral. Brown, 586 F.3d at 273, 275. The plaintiffs in Brown, like Plaintiffs here, argued that the statute's exemption from its restrictions on speech given to police, fire, rescue, or emergency personnel in the course of their official business, and employees of the health care facility in assisting patients to enter or exit the facility, made the statute content-based because those exempted persons would be allowed to picket or demonstrate within the restricted zone, while the plaintiffs would not. Id. at 273-74. The Third Circuit rejected that argument, however, finding that the statute was amenable to "an interpretation prohibiting even the exempted classes of persons from `picket[ing] or demonstrat[ing]' within the buffer zone" because the statute limited the exemption to safety personnel and facility employees performing only their official functions. Id. at 275 (alterations in original).
Lastly, Plaintiffs argue that the Ordinance, even if not content-based on its face, nonetheless restricts speech based on its content because it cannot be justified "without reference to the content of the regulated speech." Reed, 135 S.Ct. at 2227. Once again, the court disagrees. Members of law enforcement can identify patrolling, picketing, or demonstrating without knowing or needing to ascertain the content of the speech. See Hill, 530 U.S. at 721, 120 S.Ct. 2480 ("[I]t is unlikely that there would often be any need to know exactly what words were spoken in order to determine whether `sidewalk counselors' are engaging in `oral protest, education, or counseling' rather than pure social or random conversation."). Whether individuals within the restricted zones are demonstrating either in favor of or against certain medical procedures, police would be able to identify the violation of the Ordinance without hearing the speech.
Based on the discussion above, the court finds that the Ordinance is a content-neutral time, place, or manner restriction upon speech. Accordingly, intermediate scrutiny applies, and the court will now turn to Defendants' motion to dismiss using that analytical framework.
Motion to Dismiss
1. Legal Standard
A motion to dismiss pursuant to Rule 12(b)(6) tests the sufficiency of the complaint against the pleading requirements of Rule 8(a), which requires that a complaint set forth "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2). For a complaint to survive dismissal it "must contain sufficient factual matter, accepted as true, to `state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (citing Bell Atl. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). Thus, the court must "accept all factual allegations as true, construe the complaint in the light most favorable to the plaintiff, and determine whether, under any reasonable reading of the complaint, the plaintiff may be entitled to relief." United States v. Pennsylvania, 110 F.Supp.3d 544, 548 (M.D.Pa. 2015) (quoting Fleisher v. Standard Ins. Co., 679 F.3d 116, 120 (3d Cir.2012)); see also Fed. R. Civ. P. 12(b)(6).
Defendants argue in support of their motion to dismiss that Plaintiffs have not stated a plausible cause of action with regard to their First Amendment and related claims because, inter alia: (1) the Ordinance is narrowly tailored and leaves open ample alternatives, (2) the Ordinance is not unconstitutionally vague, (3) the Ordinance
a. Whether the Ordinance is Narrowly Tailored
As the court found above in section III.A of this memorandum opinion, the Ordinance is content-neutral. Accordingly, it is subject to intermediate scrutiny, which requires that a restriction on speech be "narrowly tailored to serve a significant governmental interest." Madsen, 512 U.S. at 764, 114 S.Ct. 2516. The restriction on speech need not be the least restrictive means available, but must "leave open ample alternative channels for communication." Ward, 491 U.S. at 791, 109 S.Ct. 2746 (citation omitted). As the Supreme Court has repeatedly held, "ensuring public safety and order, promoting the free flow of traffic on streets and sidewalks, protecting property rights, and protecting a woman's freedom to seek pregnancy-related services" are significant governmental interests. McCullen, 134 S.Ct. at 2535 (quoting Schenck v. Pro-Choice Network, 519 U.S. 357, 376, 117 S.Ct. 855, 137 L.Ed.2d 1 (1997), then citing Madsen, 512 U.S. at 767-68, 114 S.Ct. 2516). Not only does the government have "undeniably significant interests in maintaining public safety on those same streets and sidewalks, as well as in preserving access to adjacent healthcare facilities," but "[t]he buffer zones clearly serve these interests." McCullen, 134 S.Ct. at 2535, 2541. Plaintiffs do not appear to dispute that the government's interests in enforcing the Ordinance are significant, and, accordingly, the court finds that the Ordinance's purported goals of "promot[ing] the health and welfare of [Harrisburg] residents and visitors to [Harrisburg]'s health care facilities, as well as the health and welfare of those who may wish to voice their constitutionally protected speech outside of such health care facilities" serve significant government interests. Harrisburg, Pa. Mun. Code, § 3-371.2C. Plaintiffs do not agree, however, that the Ordinance is narrowly tailored or leaves open ample alternative channels of communication.
The Third Circuit recently explained that, in light of the Supreme Court's holdings in McCullen and Reed, a restriction on speech is narrowly tailored only where the government can "demonstrate that alternative measures that burden substantially less speech would fail to achieve the government's interests." Bruni, 824 F.3d at 369 (quoting McCullen, 134 S.Ct. at 2540). To meet this burden, the government must do more than "simply  say that other approaches have not worked." Id. Rather, the government has "to show either that substantially less-restrictive alternatives were tried and failed, or that the alternatives were closely examined and ruled out for good reason." Id. at 370. However, "some deference must be afforded to a municipality's judgment in adopting a content-neutral restriction on speech," and therefore the government need not show that "it has used the least-restrictive alternative" or that "it has tried or considered every less burdensome alternative to its Ordinance." Id.
Nonetheless, at the motion to dismiss stage Defendants have not had the opportunity to produce any evidence, and the court must accept the well-pleaded allegations in the complaint. See id. at 371. In
b. Whether the Ordinance is Impermissibly Vague
Plaintiffs allege in the complaint that the Ordinance is unconstitutionally vague because it fails to give fair notice to individuals as to what it prohibits by not defining the terms "congregate," "patrol," "picket," or "demonstrate," and gives law enforcement wide discretion to determine on a case-by-case basis what is permissible within the restricted zones. Defendants contend that the Ordinance is not impermissibly vague because it is capable of lay understanding and gives adequate guidance to police in its enforcement.
A law is impermissibly vague "if it fails to provide people of ordinary intelligence a reasonable opportunity to understand what conduct it prohibits" or "authorizes or even encourages arbitrary and discriminatory enforcement." Hill, 530 U.S. at 732, 120 S.Ct. 2480. However, "perfect clarity and precise guidance have never been required even of regulations that restrict expressive activity." Id. at 740, 120 S.Ct. 2480 (quoting Ward, 491 U.S. at 794, 109 S.Ct. 2746). The Supreme Court has previously found that terms such as "demonstrating" and "protest[ing]" were not vague, stating that "[t]he likelihood that anyone would not understand any of those common words seems quite remote." Id.; see also Schenck, 519 U.S. at 383, 117 S.Ct. 855. Thus, the court finds that the Ordinance's prohibition of congregating, patrolling, picketing or demonstrating is likely to be understood by people of reasonable intelligence and is not vague on this ground.
Plaintiffs' next argument supporting their vagueness claim is that police are given too much discretion in enforcing the Ordinance. As with Plaintiffs' first vagueness argument, the Supreme Court has refuted similar arguments in prior precedent. In Hill, the challenged statute created a buffer zone around individuals approaching health care facilities and prohibited non-consensual attempts to engage "in oral protest, education, or counseling" with such individuals. Hill, 530 U.S. at 739, 120 S.Ct. 2480. The plaintiffs argued that the inclusion of the term "education" made the statute vague because police would have wide discretion in choosing under what circumstances to enforce the statute. In rejecting the plaintiffs' argument, the Supreme Court stated that "the discretion given to the police in deciding whether to charge an offense seems no greater than the prosecutorial discretion inherent in any generally applicable criminal statute." Id. at 740, 120 S.Ct. 2480. Here, as stated above with regard to the Ordinance's content neutrality, law enforcement is able to determine whether the Ordinance is being violated by merely
Accordingly, based on the language of the Ordinance and the Supreme Court precedent rejecting similar vagueness arguments, the court finds that Plaintiffs have failed to state a claim that the Ordinance is unconstitutionally vague, and that challenge will be dismissed.
c. Whether the Ordinance is Overbroad
Defendants next argue that Plaintiffs have failed to state a claim that the Ordinance is unconstitutionally overbroad. In this regard, Plaintiffs contend that the Ordinance is overbroad because it applies to all health care facilities within Harrisburg, not merely the two clinics that offer abortion services, and thereby "creat[es] hundreds of anti-speech zones that curtail free speech in traditional public fora all over the City." (Doc. 28, pp. 30-31 of 42.)
A law is unconstitutionally "overbroad if a substantial number of its applications are unconstitutional, judged in relation to the statute's plainly legitimate sweep." Bruni, 824 F.3d at 374 (quoting Stevens, 559 U.S. at 473, 130 S.Ct. 1577). In considering a statute similar to the Ordinance, The Third Circuit recently held, however, that it is unwise at the motion to dismiss stage for a court "to assess the proper scope of [an] Ordinance without there first being a resolution of the merits of the Plaintiffs' free speech claim." Id. This is so because "[w]ithout the developed factual record that McCullen requires, we do not know the `legitimate sweep' of the buffer zone law, and thus whether it substantially exceeds that sweep." Id. Accordingly, the court finds that it is premature to dismiss Plaintiffs' overbreadth challenge.
d. Whether the Ordinance is a Prior Restraint
Plaintiffs also assert in their complaint that the Ordinance is an unconstitutional prior restraint on speech and must be invalidated on that basis. Defendants argue that the prior restraint doctrine is inapplicable because the Ordinance does not forbid speech in advance of its occurrence, but rather imposes subsequent punishments after certain types of speech take place in a limited area.
"The term prior restraint is used `to describe administrative and judicial orders forbidding certain communications when issued in advance of the time that such communications are to occur.'" Alexander v. United States, 509 U.S. 544, 550, 113 S.Ct. 2766, 125 L.Ed.2d 441 (1993) (quoting M. Nimmer, Nimmer on Freedom of Speech § 4.03, p. 4-14 (1984)). "In First Amendment jurisprudence, prior restraints are thus traditionally contrasted with `subsequent punishments,' which impose penalties on expression after it occurs." Smolla & Nimmer on Freedom of Speech § 15:1 (2014). In several of the relevant Supreme Court cases involving speech restrictions like those contained in the Ordinance, the respective plaintiffs' prior restraint arguments have been roundly rejected. See, e.g., Hill, 530 U.S. at 733, 120 S.Ct. 2480; Schenck, 519 U.S. at 374 n. 6, 117 S.Ct. 855; Madsen, 512 U.S. at 764 n. 2, 114 S.Ct. 2516. Higher courts have also routinely held that content-neutral time-place-manner restrictions are subject to intermediate scrutiny and not the more exacting standard under which prior restraints are reviewed. Indeed, "[i]f content-neutral prohibitions on speech at certain places were deemed prior restraints, the intermediate standard of review prescribed in the time-place-manner jurisprudence would be eviscerated." Bl(a)ck Tea Soc'y v. City of Bos., 378 F.3d 8,
e. Whether the Ordinance is Selectively Enforced
Defendants' next argument is that Plaintiffs have not sufficiently pleaded an as-applied claim that the Ordinance has been selectively enforced against them because they have not properly alleged a municipal custom or policy under the familiar Monell framework. Plaintiffs contend that such allegations are not required in § 1983 claims concerning a facially invalid statute.
As the court found above, the Ordinance is not unconstitutional on its face and is instead a content-neutral time-place-manner restriction. "[I]n order to win a viewpoint discriminatory enforcement challenge against a law that is facially neutral, the challenger would need to show `a pattern of unlawful favoritism.'" McGuire v. Reilly, 386 F.3d 45, 64 (1st Cir.2004) (quoting Thomas v. Chi. Park Dist., 534 U.S. 316, 325, 122 S.Ct. 775, 151 L.Ed.2d 783 (2002)). This is so because "a local government may not be sued under § 1983 for an injury inflicted solely by its employees or agents." Monell v. Dep't of Soc. Servs., 436 U.S. 658, 694, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). Rather, a plaintiff must allege that the "execution of a government's policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy, [has] inflict[ed] the injury that the government as an entity is responsible [for] under § 1983." Id.
In their complaint, Plaintiffs merely allege that "[u]pon information and belief, the  Defendants have selectively enforced the Ordinance by restricting speech only in zones surrounding abortion clinics but have not restricted speech nor attempted to restrict speech outside of other health care facilities," and that "[t]he Ordinance is an irrational and unreasonable policy." (Doc. 1, ¶¶ 38, 202.) These bare allegations fall far short of the requirement that Plaintiffs state more than "`naked assertion[s]' devoid of `further factual enhancement'" or "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements." Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (citing Bell Atl. v. Twombly, 550 U.S. 544, 555, 557, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). Plaintiffs' guess or assumption that the Ordinance is not enforced at other health care facilities throughout Harrisburg coupled with the "naked assertion" that the Ordinance is an unreasonable policy come nowhere close to stating a plausible claim for relief. Accordingly, Plaintiffs' selective enforcement claim will be dismissed.
f. Whether the Ordinance Violates the Due Process or Equal Protection Clauses
Defendants also argue that Plaintiffs have failed to state claims that the Ordinance violates their due process or equal protection rights under the Fourteenth Amendment because the First Amendment is directly applicable to Plaintiffs' claims and the Equal Protection Clause does not apply to content-neutral speech restrictions. Plaintiffs contend that their substantive due process rights are being violated by the Ordinance because it is selectively enforced against their pro-life speech and gives wide discretion to government officials.
The court has already addressed Plaintiffs' arguments regarding selective enforcement and the amount of discretion afforded to government officials, and need not do so again in Plaintiffs' repleaded
g. Whether the Ordinance Violates the Free Exercise Clause
Defendants have moved to dismiss Plaintiffs' free exercise of religion claim on the basis that the Ordinance does not violate any religious expression. Plaintiffs argue in response that the Ordinance prevents them from engaging in their religiously motivated anti-abortion speech. However, in Brown, the Third Circuit struck down an almost identical claim, stating:
Brown, 586 F.3d at 284.
Here, having already found that the Ordinance is content-neutral, the court also finds that the Ordinance is neutral and generally applicable as it pertains to the free exercise of religion. The Ordinance does not target any one religion or religious view. Rather, it simply creates a restricted area around the entrances, exits, and driveways of health care facilities where individuals may not "congregate, patrol, picket or demonstrate," so that patients can safely and without impediment enter and exit the facilities. Harrisburg, Pa. Mun. Code, § 3-371.4A. As the court found above in its discussion on content neutrality, this purpose serves the legitimate and significant government interest of providing individuals with access to health care, and there is no argument that the Ordinance's restriction on speech is not rationally related to that objective. Accordingly, the court finds that Plaintiffs have not stated a free exercise claim and it will be dismissed.
h. Whether Harrisburg City Council and Mayor Papenfuse are Improper Defendants
Lastly, Defendants argue that the claims against Harrisburg City Council and Mayor Papenfuse should be dismissed because they are redundant parties to the real party in interest, which is
It is well-established that administrative arms of municipalities are not separate entities for purposes of § 1983 liability. See, e.g., Briggs v. Moore, 251 Fed. Appx. 77, 79 (3d Cir.2007) (finding that both police department and prosecutor's office were not separate entities from municipality for § 1983 claims); Martin v. Red Lion Police Dep't., 146 Fed.Appx. 558, 562 n. 3 (3d Cir.2005) ("[T]he Red Lion Police Department, as the sub-division of defendant Red Lion Borough through which the Red Lion Borough fulfills its policing functions, was not a proper defendant in an action pursuant to 42 U.S.C. § 1983."); Reitz v. County of Bucks, 125 F.3d 139, 148 (3d Cir.1997) (holding that county district attorney's office was not separate entity for § 1983 liability). Harrisburg City Council is a subdivision of the City of Harrisburg, much the same as a district attorney's office or police department. Accordingly, the court finds that Harrisburg City Council is not a proper party to the litigation and all claims against it will be dismissed.
Defendants also argue that Mayor Papenfuse should likewise be dismissed from this case, on the similar basis that the claims against him in his official capacity are redundant with the claims against the City of Harrisburg. See Baez v. Lancaster Cty., 487 Fed.Appx. 30, 32 (3d Cir. 2012) (finding that the official capacity claim against prison warden was "duplicative of the suit against the [municipality]"). As the district court held in Bruni, "[i]t would be premature to dismiss [the] Mayor  at this early stage, prior to discovery with respect to Plaintiffs' selective enforcement claim and [the] Mayor's role, if any, in such enforcement." Bruni v. City of Pittsburgh, 91 F.Supp.3d 658, 682-83 (W.D.Pa.2015), rev'd on other grounds, 824 F.3d 353 (3d Cir.2016). Plaintiffs here advance the same argument as the plaintiffs in Bruni, and the court would be inclined to agree. However, as stated above, Plaintiffs have not properly alleged a selective enforcement claim. Thus, the court will dismiss the claims against Mayor Papenfuse.
1. Legal Standard
A preliminary injunction is a form of extraordinary relief that should only be granted where the moving party can demonstrate that: (1) the movant has a "reasonable probability of success on the merits;" (2) the movant will be irreparably injured by denial of the relief; (3) granting relief will not result in even greater harm to the non-moving party; and (4) the granting of relief is in the public interest. See McTernan v. City of York, 486 F.Supp.2d 466, 470 (M.D.Pa.2007) (citing United States v. Bell, 414 F.3d 474, 478 n. 4 (3d Cir.2005)); see also Am. Tel. & Tel. Co. v. Winback & Conserve Program, Inc., 42 F.3d 1421, 1427 (3d Cir.1994) (citing Merch. & Evans, Inc. v. Roosevelt Bldg. Prods., 963 F.2d 628, 632-33 (3d Cir. 1992)). Because granting a preliminary injunction is such an extraordinary remedy, it "is only appropriate `upon a clear showing that the plaintiff is entitled to such relief.'" Groupe SEB USA, Inc. v. Euro-Pro Operating LLC, 774 F.3d 192, 197 (3d Cir.2014) (quoting Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 22, 129 S.Ct. 365, 172 L.Ed.2d 249 (2008)). Specifically, "[t]he burden lies with the plaintiff to establish
The court was constrained to find above with regard to Defendants' motion to dismiss that the Plaintiffs have, according to the recent holding in Bruni, stated plausible First Amendment claims based on the Ordinance's content-neutral time, place, and manner restrictions on speech near the entrances, exits, and driveways of health care facilities in Harrisburg. The court found that Plaintiffs have not, however, stated claims against Harrisburg City Council or Mayor Papenfuse, or that the Ordinance is vague, a prior restraint, selectively enforced, violative of the Due Process or Equal protection Clauses, or an unconstitutional restriction on their freedom to exercise religion. Now turning to Plaintiffs' motion to preliminarily enjoin the Ordinance's enforcement, the court need only decide whether Plaintiffs have made the appropriate showing for the granting of their motion as it pertains to the surviving First Amendment claims.
a. Whether Plaintiffs Have Established a Probability of Success on the Merits
In order to prevail on the merits of their First Amendment claims, Plaintiffs must show that the Ordinance is "not narrowly tailored to serve a significant governmental interest" and fails to "leave open ample alternative channels for communication of information." McCullen, 134 S.Ct. at 2534 (citing Ward, 491 U.S. at 791, 109 S.Ct. 2746). Because the court has already found that significant governmental interests are involved, the remaining questions are whether the Ordinance is narrowly tailored and leaves open ample alternative channels for communication.
For a statute to be narrowly tailored, it "must not `burden substantially more speech than is necessary to further the government's legitimate interests.'" Id. at 2535 (citing Ward, 491 U.S. at 799, 109 S.Ct. 2746). Plaintiffs argue that the Ordinance is not narrowly tailored because it poses a significant burden on their speech, effectively preventing them from engaging in close, personal conversations or leafletting due to the twenty-foot buffer zone from any entrance, exit, or driveway to a health care facility. Although the Ordinance applies to all health care facilities in the City of Harrisburg, Plaintiffs' arguments revolve around the effects the Ordinance has only on their ability to engage in anti-abortion speech outside of the Hillcrest
Defendants argue that the Ordinance is distinguishable to the statute in McCullen because the twenty foot buffer zone here is much smaller than the thirty-five foot zone created by the Massachusetts statute. Whereas the plaintiffs in McCullen would have to raise their voice to reach their intended audience, here, Defendants argue, individuals standing outside the buffer zone at the Planned Parenthood clinic can easily communicate in a conversational tone of voice with individuals inside the zone. Regarding the Hillcrest Clinic, Defendants contend that patients usually only drive to that clinic, rather than walking down the sidewalk on Front Street, because it has a parking lot and thus there is no effect on individuals' speech when standing on the sidewalk in front of the facility. Plaintiffs agree that most patients arrive at the Hillcrest Clinic by car rather than on foot, as Plaintiff Colleen Reilly testified that by her estimate, eighty-five percent of patients arrive by vehicle, Plaintiff Becky Biter estimated that ninety percent drive to the facility, and Plaintiff Rosalie Gross estimated the number to be ninety-five percent. (See Doc. 35, ¶ 7; Doc. 33, ¶ 5; Doc. 34, ¶ 5.) Ms. Biter further testified that, although patients rarely approach the Hillcrest Clinic on foot, when they do she is able to stand on the public sidewalk on either side of the driveway and speak to them in her "desired soft, peaceful, and conversation tone" as they walk past her. (Doc. 33, ¶ 4.)
The Third Circuit recently stated that "[w]hat matters is the burden on speech that such zones impose, of which size is one but only one feature," and that previous Supreme Court cases dealing with similar statutes "turned on their distinct factual records, not a simple difference in real estate." Bruni, 824 F.3d at 368. Thus, while Defendants' argument regarding the size of the buffer zone is relevant, it alone is not dispositive. Defendants' argument that the smaller zone allows for conversational speech and is therefore not as substantial of a burden on speech as the statute in McCullen, however, is persuasive and reduces the probability of Plaintiffs' success on the merits.
Turning to Plaintiffs' contention regarding their inability to hand out literature to drivers due to the Ordinance's buffer zone around driveways at health care facilities, Defendants argue with regard to the Hillcrest Clinic that allowing individuals to stop cars at the driveway to distribute leaflets would cause a substantial safety hazard as there is no parking lane along that area of Front Street and the rear end of stopped vehicles would block a lane of traffic. In addition, City of Harrisburg Chief of Police Thomas Carter testified that traffic along that part of Front Street routinely travels in excess of thirty-five miles per hour and he is aware of at least one accident at the Hillcrest Clinic. (See Doc. 32-1, ¶ 6.) Although the court recognizes that Plaintiffs' inability to distribute leaflets to drivers as they enter the Hillcrest Clinic is a substantial burden on their speech, the burden is not greater than necessary in light of the significant safety hazard created by blocking a lane of traffic on a busy street where vehicles are traveling at high speeds.
Although Defendants have not made a clear showing, at the preliminary injunction stage, it is Plaintiffs who have the burden of clearly establishing a probability of success on the merits. Based on the record before the court, Plaintiffs have failed to carry that burden. Therefore, the court finds that the first factor weighs against granting the preliminary relief with regard to Plaintiffs' argument that the Ordinance is not narrowly tailored.
Plaintiffs' lone remaining argument to support the granting of a preliminary injunction is that they are likely to succeed on the merits of their challenge that the Ordinance is unconstitutionally overbroad. Plaintiffs contend that the Ordinance is overbroad because it applies to all health care facilities throughout Harrisburg, rather than just the Hillcrest and Planned Parenthood Clinics. The courts in both Hill and Brown rejected similar arguments, stating that "the comprehensiveness of the statute is a virtue, not a vice, because it is evidence against there being a discriminatory governmental motive." Brown, 586 F.3d at 273 n. 10 (quoting Hill, 530 U.S. at 731, 120 S.Ct. 2480). Furthermore, the Brown court stated that the plaintiffs' claim showed a basic misunderstanding of the overbreadth doctrine, as there was no dispute that the restriction at issue affected protected speech. As such, what the plaintiffs "classified as an `overbreadth' problem, in other words, was better understood analytically as a concern to be address within the framework of Ward's narrow-tailoring test." Id. Thus, the court finds that Plaintiffs' have failed to show a probability of success on the merits regarding their overbreadth claim, and this factor weighs against granting a preliminary injunction.
Because Plaintiffs have not demonstrated a likelihood of success on the merits of their First Amendment claims, the court need not consider the remaining requirements for granting a preliminary injunction. Where a plaintiff "has failed to demonstrate the likelihood of success on the merits... [t]his failure alone establishes that [the plaintiff] is not entitled to a preliminary injunction." Ulrich v. Corbett, 614 Fed.Appx. 572, 575 n. 3 (3d Cir.2015) (citation omitted). The court is unwilling to disturb the status quo and prematurely
For the reasons stated herein, the court finds that Plaintiffs have stated plausible claims for relief with regard to their First Amendment free speech, free press, and free assembly claims in Counts 1 through 3, and those claims, along with Plaintiffs' overbreadth challenge, will not be dismissed. Plaintiffs have failed to state claims with regard to the remainder of the claims in their complaint, however, and Counts 4 and 5 will be dismissed. As to Plaintiffs' motion for a preliminary injunction, Plaintiffs failed to clearly establish a probability of success on the merits, and the motion will be denied.
An appropriate order will issue.