NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 18-2168
________________
WILLIAM A. REED, JR, as personal representative for ELSIE M. REED,
an incompetent individual, and WILLIAM A. REED, JR., individually,
Appellant
v.
KAREN SCHEFFLER, Mayor of the Borough of Palmyra;
*TRACY KILMER, Housing Official, Borough of Palmyra;
*BOROUGH OF PALMYRA
*Dismissed Pursuant to Clerk’s Order dated 9/26/18
On Appeal from the United States District Court
for the District of New Jersey
(D. C. Civil Action No. 1-16-cv-00423)
District Judge: Honorable Noel L. Hillman
________________
Submitted under Third Circuit LAR 34.1(a)
on January 25, 2019
Before: JORDAN, KRAUSE and ROTH, Circuit Judges
(Opinion filed: June 24, 2019)
OPINION ∗
∗
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
ROTH, Circuit Judge
William Reed alleges that the mayor of his town violated his free speech rights
when she criticized the condition of property owned by Reed’s mother. He contends that
the mayor’s statements, made in the local newspaper, constituted “viewpoint
discrimination” because they were harmful criticisms directed only at his mother’s
property. Because the District Court did not err in dismissing Reed’s claims, we will
affirm.
I1
In 2014, Reed had a power of attorney to act for his mother during the sale of her
house in the Borough of Palmyra, New Jersey. As part of the property sale process, the
owner of the home was required to obtain a Certificate of Occupancy (CO) by passing an
inspection of the house by the Borough. Following the inspection, the Borough required
that thirty-three code violations be remedied prior to the issuance of a CO. Reed
corrected the code violations, and the property passed a subsequent inspection. As a
result, the Borough issued a CO and the house was sold several months later.
In early 2015, Reed spoke at an official session of the Borough Council, where he
“told the Borough Council that he wanted them to be aware of the hardship and expense
he experienced in the sale of the family home.” 2 Two days later, the online edition of the
Burlington County Times published statements made by the Mayor of Palmyra, Karen
1
For purposes of resolving this motion to dismiss, we assume all facts alleged in
the complaint are true. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
2
App. 39.
2
Scheffler, in response to Reed’s comments at the Borough Council meeting. According
to Scheffler:
• The house was in extreme disrepair—dangerous even—and had been vacant
for some time.
• Properties of this sort negatively affect the entire neighborhood and bring
down property values.
• The property was a real eyesore for the neighborhood and a liability for Mr.
Reed.
• The property had too many problems.
• There were many deficient areas, including electrical and plumbing problems,
numerous holes, leaks, lack of CO detectors, a lack of hot water, crumbled
chimney cement, no working stove and exposed wiring. 3
Reed filed a complaint in the District of New Jersey against the Borough of
Palmyra, Scheffler, and the Borough’s Housing Official, Tracy Kilmer. He alleged, in
relevant part, that Scheffler (1) violated his rights to free speech and to petition the
government under the United States and New Jersey constitutions and (2) defamed him.
Scheffler filed a motion to dismiss all counts against her for failure to state a claim, and
the District Court granted the motion. Following the District Court’s denial of Reed’s
motions for reconsideration and for leave to amend his complaint, all causes of action
against the Borough and Kilmer were resolved and this appeal followed.
In this appeal, Reed challenges the dismissal of two claims he brought against
Scheffler: (1) Count V, for alleged violation of the First Amendment, pursuant to 42
U.S.C. § 1983; and (2) Count VI, for alleged violation of the right to freedom of speech
and to petition the government, pursuant to N.J.S.A. 10:6-2(c) and Article I, ¶¶ 1 and 18
3
App. 39-40.
3
of the New Jersey Constitution. Neither party challenges the District Court’s conclusion
that the analysis for both claims is identical.
II 4
Reed’s sole argument on appeal is that Scheffler violated Reed’s right to free
speech by failing to act in a viewpoint neutral manner. 5 However, in this case, Reed does
not allege the existence of any government restriction on his speech, nor does he allege
that he was unlawfully prevented from speaking freely before the Palmyra Borough
Council. Instead, he contends that Scheffler’s statements to the press—i.e., government
speech—should have been viewpoint neutral.
The Supreme Court has consistently rejected the notion that government speech
must be viewpoint neutral, holding that “the First Amendment does not say that . . .
government entities must abridge their own ability to speak freely,” 6 and that “the
Government’s own speech . . . is exempt from First Amendment scrutiny.” 7 This is
because “[w]hen a government entity embarks on a course of action, it necessarily takes a
particular viewpoint and rejects others. The Free Speech Clause does not require
4
The District Court had jurisdiction pursuant to 28 U.S.C. § 1331 and 28 U.S.C. §
1367. We have jurisdiction pursuant to 28 U.S.C. § 1291. We exercise “plenary review
of a motion to dismiss pursuant to Rule 12(b)(6).” Encompass Ins. Co. v. Stone Mansion
Rest. Inc., 902 F.3d 147, 151 (3d Cir. 2018).
5
In this appeal, Reed abandons all claims based on a theory of retaliation.
Similarly, Reed fails to raise any arguments challenging the District Court’s denial of his
motion to amend the complaint. In re Asbestos Prod. Liab. Litig. (No. VI), 873 F.3d 232,
237 (3d Cir. 2017) (“As a general matter, an appellant waives an argument in support of
reversal if it is not raised in the opening brief.” (citing McCray v. Fidelity Nat’l Title Ins.
Co., 682 F.3d 229, 241 (3d Cir. 2012))).
6
Matal v. Tam, 137 S. Ct. 1744, 1757 (2017).
7
Johanns v. Livestock Mktg. Ass’n, 544 U.S. 550, 553 (2005).
4
government to maintain viewpoint neutrality when its officers and employees speak
about that venture.” 8 Thus, the First Amendment did not require Scheffler to speak in a
viewpoint neutral manner. Reed’s argument to the contrary must fail.
III
For the above reasons, we will affirm the judgment of the District Court.
8
Matal, 137 S. Ct. at 1757.
5