                                                                NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT
                                ____________

                                     No. 11-1937
                                    ____________

              KENNETH A. ASHTON, SR. and WILLIAM E. ASHTON,

                                                  Appellants

                                           v.

    CITY OF UNIONTOWN; EDWARD FIKE, both individually and as mayor of
    Uniontown; JASON COX, both individually and as Uniontown Chief of Police;
   GEORGIA TOMI, both individually and as an employee of the City of Uniontown


                                     ____________

                    On Appeal from the United States District Court
                       for the Western District of Pennsylvania
                                (D.C. No. 10-cv-00803)
                     District Judge: Honorable Gary L. Lancaster
                                    ____________

                      Submitted Under Third Circuit LAR 34.1(a)
                                 December 8, 2011

  Before: HARDIMAN and BARRY, Circuit Judges and SLOMSKY*, District Judge

                                Filed: January 25, 2012
                                    ____________

                              OPINION OF THE COURT
                                   ____________


      *
       The Honorable Joel H. Slomsky, District Judge for the United States District
Court for the Eastern District of Pennsylvania, sitting by designation.
SLOMSKY, District Judge

          Kenneth A. Ashton, Sr. and William E. Ashton appeal the District Court’s order

dismissing their federal civil rights suit brought pursuant to 42 U.S.C § 1983. We will

affirm.

                                              I.

          Because we write for the parties who are well acquainted with the case, we

recount only the essential facts and procedural history. On June 12, 2008, William

Ashton went to his motorcycle, parked on East Main Street in Uniontown, Pennsylvania.

He noticed that Georgia Tomi, a Uniontown meter maid, was issuing him a ticket.

William informed Tomi he would move his vehicle and started to mount it. While

observing this movement, Tomi struck William once in the back with a closed fist.

          After being struck, William told Tomi he was going to the Mayor’s Office in City

Hall to file a complaint against her. Tomi, along with William’s brother, Kenneth A.

Ashton, Sr., followed him to City Hall. Upon arrival, William entered the building and

asked to speak with Mayor Edward Fike while Kenneth and Tomi waited outside.

William was informed that the Mayor was unavailable. Outside, Kenneth met and spoke

with Jason Cox, Uniontown’s Police Chief. He explained the events that transpired

between his brother and Tomi. Chief Cox questioned Tomi regarding the incident, and

she admitted striking William. Neither the City of Uniontown nor the police department

further investigated the matter involving Tomi or disciplined her.

          Subsequent to these events, but stemming from them, Kenneth and William were

cited for and found guilty of violations of Pennsylvania state law. Kenneth was found


                                               2
guilty of one count of disorderly conduct by use of obscene language or gesture, 18 Pa.

Cons. Stat. § 5503(a)(3), and one count of harassment by following someone in or about

a public place, 18 Pa. Cons. Stat. § 2709(a)(2). William was found guilty of driving with

an improper class of license, 75 Pa. Cons. Stat. § 1504(a).

       On June 11, 2010, Appellants filed in the District Court the Complaint naming as

Defendants the City of Uniontown, Mayor Fike, Chief Cox, and meter maid Tomi. An

Amended Complaint was later filed asserting: 1) § 1983 claims for violations of their

First, Fourth, and Fourteenth Amendment rights, and 2) various state claims including

assault, battery, abuse of process, intentional infliction of emotional distress, negligence,

gross negligence, defamation, fraud, and civil conspiracy. On December 13, 2010,

Defendants filed a Motion to Dismiss the Amended Complaint, which was referred to a

U.S. Magistrate Judge for a Report and Recommendation. On February 11, 2011, the

Magistrate Judge issued a Report and Recommendation. He recommended that the

federal claims brought pursuant to 42 U.S.C § 1983 be dismissed and the District Court

decline to exercise supplemental jurisdiction over the state claims. On March 11, 2011,

the District Court granted the Motion to Dismiss, adopting the Report and

Recommendation.

                                              II.

       The Magistrate Judge issued the Report and Recommendation pursuant to 28

U.S.C. § 636(b)(1)(B). The District Court reviewed the Magistrate Judge’s Report and

Recommendation pursuant to 28 U.S.C. § 1331. We have jurisdiction over this appeal

pursuant to 28 U.S.C. § 1291, and our review of the District Court’s grant of a motion to


                                              3
dismiss is plenary. Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 906 (3d Cir. 1997)

(citing Jordan v. Fox, Rothschild, O’Brien & Frankel, 20 F.3d 1250 (3d Cir. 1994)). In

reviewing the lower court’s decision, we must “accept as true all of the allegations in the

complaint and all reasonable inferences that can be drawn therefrom, and view them in

the light most favorable to the plaintiff.” Morse, 132 F.3d at 906 (citations omitted).

However, a court will not credit the “bald assertions” or “legal conclusions” of a

complaint. Id.

                                            III.


       A.     First Amendment Claim

       Appellants argue the District Court erred in dismissing their First Amendment

retaliation claim because the United States Supreme Court’s decision in Heck v.

Humphrey, 512 U.S. 477 (1994), which limits litigation of a civil rights claim arising

from a conviction, does not apply here.1 (Appellants’ Br. 10–13; Reply Br. 5–6.)

Initially, a prima facie showing of First Amendment retaliation under 42 U.S.C. § 1983

requires a plaintiff to demonstrate: 1) a plaintiff engaged in speech protected by the First

Amendment; 2) the government responded with retaliatory action that would cause a

person of ordinary firmness not to exercise his First Amendment right; and 3) there is a

causal link between the retaliation and the protected speech. Thomas v. Independence


       1
        Appellants also claim the District Court should not have dismissed their claim
because they established a prima facie showing of First Amendment retaliation. Because
the Heck doctrine bars their claim, we will not address this argument.



                                             4
Twp., 463 F.3d 285, 296 (3d Cir. 2006). A plaintiff’s right, however, to maintain a First

Amendment retaliation action is not absolute. See Heck, 512 U.S. at 486–87. In Gilles v.

Davis, 427 F.3d 197 (3d Cir. 2005), we explained that, under Heck, “a § 1983 action that

impugns the validity of the plaintiff’s underlying conviction cannot be maintained unless

the conviction has been reversed on direct appeal or impaired by collateral proceedings.”

Gilles, 427 F.3d at 208–09.

       Appellants allege that on June 12, 2008, they engaged in protected activity under

the First Amendment when they discussed with meter maid Tomi and then with Chief

Cox the conduct of Tomi in striking William and issuing him a ticket. (Appellants’ Br.

12; App. II 13 ¶ 34.) They further claim that Tomi retaliated against them by making

false statements “to [the] police, the district attorney and others” (Appellants’ Br. 12;

App. II 13, 14 ¶¶ 35, 40) and that Chief Cox retaliated against them by: 1) refusing to

investigate Tomi’s conduct; 2) refusing to discipline Tomi; and 3) making false

statements “to [the] police, the district attorney and others.” (Appellants’ Br. 12; App. II

13–14 ¶¶ 36–40.)

       As noted previously, Appellants were charged with and convicted of state crimes

arising from the events of June 12, 2008. Kenneth was found guilty of disorderly

conduct and harassment. (App. II 26–33.) William was found guilty of use of an

improper class of license. (App. II 34–36.) We must decide whether permitting

Appellants’ First Amendment claim to proceed in this case would impugn the validity of

Appellants’ convictions. Here, Kenneth’s First Amendment retaliation claim fails

because his convictions for disorderly conduct and harassment arise from his actions


                                              5
outside of City Hall and are barred by Heck and Gilles. In Gilles, the appellant’s

preaching enraged bystanders, which caused authorities to cite him for disorderly

conduct. The appellant later filed a § 1983 action, alleging the infringement of his First

Amendment right. We held that Heck barred the appellant’s claim because it would

create “parallel litigation over whether [the appellant’s] activity constituted disorderly

conduct and could result in a conflicting resolution arising from the same conduct.”

Gilles, 427 F.3d at 209. Similarly here, Kenneth’s disorderly conduct and harassment

convictions arise from his conduct on June 12, 2008. Though we do not know the precise

behavior underlying these convictions, the record establishes that Kenneth went to City

Hall with Tomi to complain about her conduct. On the same day, he was cited for

disorderly conduct and harassment. The only logical conclusion from these facts is that

his convictions arise from the June 12, 2008 events. Because we would have to decide

whether William’s conduct on June 12, 2008 constitutes protected activity under the First

Amendment, permitting his claim to proceed would necessarily impugn the validity of his

underlying convictions for disorderly conduct and harassment.

       Likewise, William’s First Amendment retaliation claim is barred by the Heck

doctrine and Gilles. William alleges Tomi and Cox retaliated against him by making

false statements “to [the] police, the district attorney and others” and by refusing to

investigate or discipline Tomi, presumably believing her version of the events over that

of William. For the First Amendment retaliation claim to be barred by the Heck doctrine,

the alleged false statements must impugn William’s conviction. William has not pled

with any specificity the substance of these false statements nor any fact warranting an


                                              6
inference that the statements were unrelated to the June 12, 2008 events. Therefore, after

careful review of the record and based on William’s allegation that these false statements

were made “to [the] police, the district attorney and others,” it logically follows that the

statements made by Tomi and Cox relate to the incident of June 12, 2008. Because

William’s conviction for driving with an improper class of license also stems from the

June 12, 2008 events, if we were to hear the claim, we necessarily would have to decide

whether William’s conviction was valid or was an act of retaliation. Permitting William

to proceed with his First Amendment retaliation claim would impugn the validity of his

underlying conviction because both the conviction and First Amendment retaliation claim

are based in part on the alleged “false statements.”

       Accordingly, we will affirm the District Court’s dismissal of Appellants’ First

Amendment retaliation claim.

       B.     Excessive Force Under the Fourth and Fourteenth Amendments

       William contests the District Court’s dismissal of his excessive force claims. The

Fourth Amendment protects a person from being subjected to unreasonable seizure by the

authorities. To state a claim for unreasonable seizure under the Fourth Amendment, a

plaintiff must show: 1) that a seizure occurred and 2) that the seizure was unreasonable.

Rivas v. City of Passaic, 365 F.3d 181, 198 (3d Cir. 2004) (quoting Curley v. Klem, 298

F.3d 271, 279 (3d Cir. 2002)). Force which is excessive and unreasonable may rise to the

level of a seizure. See Abraham v. Raso, 183 F.3d 279, 287–88 (3d Cir. 1999).

Therefore, when an officer restrains a person from walking away freely, a seizure may

occur. Rivas, 365 F.3d at 198.


                                              7
       If a plaintiff cannot establish a Fourth Amendment seizure, a substantive due

process analysis is applied to the same factual averments. See Cnty. of Sacramento v.

Lewis, 523 U.S. 833, 846 (1998). The substantive due process prong of the Fourteenth

Amendment protects against “the exercise of power without any reasonable justification

in the service of a legitimate governmental objective.” Id. To establish a substantive due

process claim, a plaintiff must demonstrate: 1) an actor engaged in conduct under color

of state law; 2) a deprivation of a protected liberty interest by that conduct; and 3) the

deprivation shocks the conscience. Chainey v. Street, 523 F.3d 200, 219 (3d Cir. 2008).

We have consistently held that only the most egregious official conduct shocks the

conscience. Id. (quoting United Artists Theatre Circuit, Inc. v. Twp. of Warrington, 316

F.3d 392, 400 (3d Cir. 2003)).

       Here, William argues first that he has alleged sufficiently the use of excessive and

unreasonable force under the Fourth Amendment resulting in a seizure because a seizure

occurs whenever a government actor terminates an individual’s ability to move freely.

He contends that when Tomi struck him on the back with a closed fist, it thwarted his

freedom of movement and thereby constituted a seizure. (Appellants’ Br. 15–16.)

Accepting William’s allegations as true, he fails to demonstrate that this act rises to the

level of a seizure because his movement was not occluded. In fact, William remained

free to walk to City Hall, which he promptly did following the incident. Accordingly, the

act alleged is not the type of force required to be present to constitute a seizure. Compare

Abraham, 183 F.3d at 288 (finding the plaintiff was “seized” after being shot), with

Gottlieb v. Laurel Highlands Reg’l. Sch. Dist., 272 F.3d 168, 172 (3d Cir. 2001) (finding


                                              8
a student was not seized after a public school teacher allegedly pushed the student into a

doorknob).

       Because William did not establish that he was seized as required for a Fourth

Amendment violation, his excessive force claim is then subject to a substantive due

process analysis. See Gottlieb, 272 F.3d at 171–72. William argues that he alleged

sufficient facts to satisfy the shocks the conscience standard.2 (Appellants’ Br. 18.) Our

decision in Gottlieb shows that under this standard, the burden on a plaintiff is quite high.

There, we held that a teacher shoving a student into a doorjamb did not rise to the level of

conscience shocking behavior despite the student’s alleged chronic pains following the

incident. Gottlieb, 272 F.3d at 175. Similarly, in Cummings v. McIntire, 271 F.3d 341

(1st Cir. 2001), the First Circuit did not find conscience shocking behavior when a police

officer, who was directing traffic, pushed the appellant and yelled at him, resulting in the

appellant suffering a stabbing pain and permanent injury. Cummings, 271 F.3d at 346–

47.


       2
         The parties do not dispute the existence of the first two elements of the
substantive due process claim: 1) action under color of state law and 2) the presence of a
liberty interest. Even if these elements were challenged, our case law supports a finding
of these elements. Regarding the element of acting under color of state law, because
Tomi was working as a Uniontown meter maid, she was acting under color of state law.
See Angelico v. Lehigh Valley Hosp., Inc., 184 F.3d 268, 277 (3d Cir. 1999) (citations
omitted) (finding that a person may be found a state actor when she is a state official,
obtains significant aid from state officials or her actions are chargeable to the state). As
to the protected interest element, William alleges violation of his Fourth Amendment
right to be free from excessive force, which is encompassed in the firmly established
liberty interest in one’s bodily integrity. See Planned Parenthood of Se. Pa. v. Casey,
505 U.S. 833, 847–49 (1992) (citations omitted).



                                              9
       William alleges that Tomi struck him once in the back with a closed fist.

Accepting this allegation as true, Tomi’s response to William mounting his motorcycle,

while inappropriate, does not rise to conscience shocking behavior. Moreover, William

has not alleged any ongoing pain or injury. Here, Tomi’s action is more akin to the

actions of appellees in Gottlieb and Cummings. Accordingly, we will affirm the District

Court’s dismissal of Appellant William Ashton’s excessive force claims under the Fourth

and Fourteenth Amendments.

       C.     Federal Civil Conspiracy Claims

       Appellants also argue the District Court erred in dismissing their federal civil

conspiracy claim pursuant to 42 U.S.C § 1983.

       “In order to prevail on a conspiracy claim under § 1983, a plaintiff must prove that

persons acting under color of state law conspired to deprive him of a federal protected

right.” Ridgewood Bd. of Educ. v. N.E. ex rel. M.E., 172 F.3d 238, 254 (3d Cir. 1999),

superseded by statute on other grounds as stated in P.P. v. West Chester Area Sch. Dist.,

585 F.3d 727, 730 (3d Cir. 2009).

       To satisfy these elements at the motion to dismiss stage, Federal Rule of Civil

Procedure 8(a)(2) requires “a short and plain statement of the claim showing that the

pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). We do not subject conspiracy

claims to a heightened standard of pleading. See Jones v. Bock, 549 U.S. 199, 224

(2007). However, the complaint must provide some factual basis to support a claim. See

Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009). After Iqbal, it is clear that “threadbare

recitals of the elements of a cause of action, supported by mere conclusory statements”


                                             10
are insufficient to defeat a Rule 12(b)(6) motion to dismiss. Id. at 1949; see also Bell Atl.

Corp. v. Twombly, 550 U.S. 544, 555–56 (2007). Accepting Appellants’ allegations as

true, Appellants fail to meet this standard.

       Here, Appellants’ Amended Complaint does not explicitly plead a § 1983 civil

conspiracy claim. (See App. II 16–22.) Instead, a federal conspiracy claim may be

gleaned from one sentence in the Amended Complaint: “The actions of all the

Defendants, acting in concert and conspiracy, as outlined herein, amount to an abuse of

official power that shocks the conscience.” (App. II 22 ¶ 83.) Appellants’ conspiracy

claim brought under 42 U.S.C. § 1983 fails because the Amended Complaint is devoid of

any factual allegation showing an agreement or concerted activity by Tomi, Cox or

Mayor Fike, a necessary element of a conspiracy claim. At best, the allegations show

that the three Defendants acted independently of each other. No inference of an

agreement arises from the facts. Furthermore, since we have concluded that the federal

civil rights claims which are the object of the conspiracy must be dismissed, the alleged

conspiracy to violate federal civil rights must also be dismissed because no federally

protected right exists that is the object of the conspiracy. Thus, one element of a

conspiracy cause of action has not been satisfied. Accordingly, we cannot conclude that

the District Court erred in dismissing the civil conspiracy claim arising under § 1983.

       D.     Supplemental Jurisdiction over Appellants’ State Claims

       Further, the District Court correctly refused to exercise supplemental jurisdiction

over the state civil conspiracy claim and remaining state law claims. “[W]here the claim

over which the district court has original jurisdiction is dismissed before trial, the district


                                               11
court must decline to decide the pendent state claims unless considerations of judicial

economy, convenience, and fairness to the parties provide an affirmative justification for

doing so.” Borough of W. Mifflin v. Lancaster, 45 F.3d 780, 788 (3d Cir. 1995).

       Here, original jurisdiction is based on Appellants’ First Amendment retaliation,

excessive force under the Fourth and Fourteenth Amendments, and federal civil

conspiracy claims, which were properly dismissed before trial. Appellants have not

alleged facts showing that judicial economy, convenience and fairness to the parties

would warrant the state law claims remaining in federal court. Accordingly, the District

Court did not err in declining to exercise supplemental jurisdiction over them.

                                            IV.

       For the foregoing reasons, we will affirm the District Court’s order.




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