Thomas Pugh v. Cambria County Children and Youth Services and Cheryl Bennett — Motion Dismissed

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April 8, 2026 Get Citation Alerts Download PDF Add Note

Thomas Pugh v. Cambria County Children and Youth Services and Cheryl Bennett

District Court, W.D. Pennsylvania

• Citations: None known
• Docket Number: 3:26-cv-00119

• Precedential Status: Unknown Status

• Opinion

• Authorities (42)

• Cited By (0)

• Summaries (0)

• Similar Cases (24.6K)

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Trial Court Document

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANNIA

THOMAS PUGH, )
)
Plaintiff, )
)
VS. ) Civil Action No. 3:26-cv-00119
) Judge D. Brooks Smith
) Sitting by Designation
CAMBRIA COUNTY CHILDREN AND _ )
YOUTH SERVICES, and CHERYL )
BENNETT, )
)
Defendants. )

MEMORANDUM and ORDER OF COURT
SMITH, Circuit Judge,!
Plaintiff Thomas Pugh, proceeding pro se, initiated this civil rights action

pursuant to 42 U.S.C. § 1983 against Defendants Cambria County Children and
Youth Services (“CYS”) and Cheryl Bennett, a caseworker with CYS, arising out of

a child-welfare investigation. He alleges that Bennett singled him out for
investigation because of personal bias and his status as a registered sex offender and
that she failed to adequately explain the basis for, or nature of, the investigation.
Presently before the Court is Defendants’ Motion to Dismiss pursuant to Federal

' By order dated December 19, 2025, the Honorable Michael A. Chagares, Chief
Judge of the U.S. Court of Appeals for the Third Circuit, designated and assigned
Circuit Judge D. Brooks Smith, pursuant to 28 U.S.C. § 291 (b), to hold court in the
Western District of Pennsylvania.

Rule of Civil Procedure 12(b)(6). For the reasons that follow, the Motion will be
granted, and the claims against Defendants will therefore be dismissed.

I. Background
In 1996, Pugh was convicted in New York of two counts of first-degree rape,
see N.Y. Penal L. § 130.35, and one count of first-degree sodomy, see id. § 130.50.
He now resides in Pennsylvania. ECF 1 (“Compl.”), at 1.2 Because of those
convictions, Pugh must maintain a lifetime sex-offender registration with the
Pennsylvania State Police under both federal and Pennsylvania “Megan’s Law.“ See 34 U.S.C. § 20911-20915; 42 Pa. C. S. § 9799.55.

2 See Thomas Pugh Jr, PA MEGAN’S LAW,
https://www.meganslaw.psp.pa.gov/OffenderDetails/Offenses/46073
https://perma.cc/3 NA5-XA8E; Sex Offender Registry,
N.Y. STATE Div. OF CRIM. JUST. SERVS.,
□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□ offend
erid=32573&lang=EN https://perma.cc/2JT8-Y83C.
The Complaint refers to Pugh’s “underlying offense,” but provides no details. In
resolving a motion to dismiss, I generally may not consider matters extraneous to
the pleadings. I may, however, properly consider “matters of public record.” Handal
v. Innovative Indus. Props., Inc., 157 F.4th 279, 292 (3d Cir. 2025) (citation omitted).
3 The Complaint does not fully comply with Federal Rule of Civil Procedure 10(b),
which requires parties to state their claims in numbered paragraphs. See Fed. R. Civ.
P. 10(b). That defect makes precise citation difficult. I therefore cite the Complaint
by page number.
“Megan Kanka was a 7—year—old New Jersey girl who was sexually assaulted and
murdered in 1994 by a neighbor who, unknown to the victim’s family, had prior
convictions for sex offenses against children. The crime gave impetus to laws for
mandatory registration of sex offenders and corresponding community notification.”
Smith v. Doe, 538 U.S. 84, 89 (2003). “By 1996, every State, the District of

According to the Complaint, on January 15, 2026, Bennett went to Pugh’s
residence? to investigate an alleged “risk to children.” Compl. at 2. Pugh alleges that
Bennett refused to disclose the nature of the allegation and instead questioned him
about his Megan’s Law registration, stating that his registration was “outdated.” Jd.
Shortly afterward, CYS closed its investigation into Pugh without opening a formal

case or taking any adverse action. ECF 8—2.° Even so, based on that encounter, Pugh
alleges that he suffered “emotional distress, reputational harm, and fear of unjustified
state interference with his family.” Compl. at 2.’

Columbia, and the Federal Government had enacted some variation of Megan’s
Law.” Id., at 90
° Defendants contend that Pugh was not interviewed at his residence, but rather at a
nearby restaurant. ECF 6 at §8 n.3. Because this matter is before me on a motion to
dismiss, I must accept Pugh’s allegation as true. See Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d Cir. 2009).
Both parties attach to their briefing a letter from CYS to Pugh stating that “after
investigating the concerns that were reported to [CYS] . . . further investigation is
not necessary and a case will not be opened.” Jd. I may properly consider this letter
in ruling on the motion to dismiss. See In re Rockefeller Ctr. Props., Inc. Sec. Litig., 184 F.3d 280, 287 (3d Cir. 1999) (courts may consider an “undisputedly authentic
document that a defendant attaches as an exhibit . . . ifthe plaintiff’s claims are based
on the document”). Oddly, Bennett’s letter is dated February 7, 2026 while Pugh’s
letter is dated January 28, 2026, although the contents of the letter are identical.
Compare ECF 6-4 with ECF 8-2. However, because the contents of the letter are not
in dispute, “the primary problem raised by looking to documents outside the
complaint—lack of notice to the plaintiff—is dissipated.” In re Burlington Coat
Factory Sec. Litig., 114 F.3d 1410, 1426 (3d Cir. 1997).
his Opposition to Defendants’ Motion to Dismiss, Pugh adds an allegation that
Bennett “coerced [him] into allowing a home inspection by falsely stating that he
‘could not refuse.’” ECF 8 at 1. However, it is axiomatic that a “complaint may not
be amended by the briefs in opposition to a motion to dismiss.” Govt Emps. Ins. Co.

Pugh asserts four claims under the Fourteenth Amendment and seeks over $1
million in damages.® He alleges that Bennett (1) violated his procedural due process
rights by refusing to identify the allegation or explain how his registration status
created a risk to children, thereby depriving him of a meaningful opportunity to
understand and respond to the investigation; (2) violated his substantive due process
rights by interfering with his “fundamental right to family integrity without
legitimate justification”; (3) discriminated against him on the basis of his status as a

Megan’s Law registrant, in violation of the Equal Protection Clause; and (4) used
her state authority to retaliate against him because he had previously prevailed in a
civil case against an unidentified individual with whom Bennett allegedly has a
personal relationship. Compl. at 2-3.
Defendants moved to dismiss the Complaint under Rule 12(b)(6) and filed a
brief in support. ECF 6, 7. Pugh filed an opposition. ECF 8. The motion is now ripe
for disposition.

v. Mount Prospect Chiropractic Ctr, P.A., 98 F.4th 463, 472 (3d Cir. 2024) (citation
omitted). I therefore do not consider that allegation.
8 Pugh specifies that he is seeking $500,000 in compensatory damages, $500,000 in
“emotional distress damages,” and $250,000 in punitive damages. Compl. at 3. Such
specification of unliquidated damages is improper pursuant to this Court’s local
rules. See W.D. Pa. LCvR 8 (stating that “[n]o party shall set forth in a pleading
originally filed with this Court a specific dollar amount of unliquidated damages in
a pleading except as may be necessary to invoke the diversity jurisdiction of the
Court ...”).

II. Standard of Review
A motion to dismiss filed pursuant to Federal Rule of Civil Procedure
12(b)(6) tests the legal sufficiency of the complaint. Kost v. Kozakiewicz, 1 F.3d 176,
183 (3d Cir. 1993). In resolving such a motion, a district court must accept all well-
pleaded factual allegations as true and view them in the light most favorable to the
plaintiff. See Fowler, 578 F.3d at 210. Indeed, a district court must do so “even if it
strikes a savvy judge that actual proof of those facts alleged is improbable and that

a recovery is very remote and unlikely.” Jd. at 213 (quoting Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 556 (2007)). However, it need not accept as true
“unsupported conclusions and unwarranted inferences, or a legal conclusion
couched as a factual allegation.” Baraka v. McGreevey, 481 F.3d 187, 195 (3d Cir.
2007) (citations omitted); see also Pa. Prison Soc’y v. Cortes, 622 F.3d 215, 233 (3d
Cir. 2010) (“While legal conclusions can provide the framework of a complaint, they
must be supported by factual allegations.”).
To avoid dismissal, a complaint must contain sufficient factual matter,
accepted as true, to “raise a right to relief above the speculative level” and “state a
claim to relief that is plausible on its face.” Twombly, 550 U.S. at 555, 570. That
standard requires more than “a sheer possibility that a defendant has acted
unlawfully.” Asheroft v. Iqbal, 556 U.S. 662, 678 (2009). A plaintiff must plead

sufficient factual content “that allows the court to draw the reasonable inference that
the defendant is liable for the misconduct alleged.” Id. Generally, a district court must afford a plaintiff proceeding pro se some
“orocedural flexibility” when reviewing and interpreting his pleadings. Mala v.
Crown Bay Marina, Inc., 704 F.3d 239, 245 (3d Cir. 2013). I must, therefore,
“liberally construe” Pugh’s pleadings. Higgs v. Att’y Gen., 655 F.3d 333, 339 (3d
Cir. 2011) (“The obligation to liberally construe a pro se litigant’s pleadings is well-
established.”). Nonetheless, even though he is proceeding pro se, Pugh “still must
allege sufficient facts in [his] complaint[] to support a claim,” and I may not conjure
up or supply missing factual allegations if he fails to adequately do so. Mala, 704
F.3d at 245; see also Pliler v. Ford, 542 U.S. 225, 231 (2004) (“District judges have

no obligation to act as counsel or paralegal to pro se litigants.”’).

Ill. Analysis
To state a claim under 42 U.S.C. § 1983, a plaintiff is required to allege the
following: first, the deprivation of a right secured by the Constitution or federal law;
and second, that the deprivation was caused by a person acting under color of state
law. West v. Atkins, 487 U.S. 42, 48 (1988).

Here, there is no dispute that Bennett was acting under color of state law when
she interviewed Pugh in the course of her work as a state employee.’ The question
thus is whether Pugh has plausibly alleged the deprivation of a constitutional right.
He asserts four theories: procedural due process, substantive due process, equal
protection, and retaliation. I address each in turn.

A. Due Process
Pugh alleges that Defendants violated his substantive and procedural due

process rights by initiating an investigation without legitimate justification, without
prior notice, and without disclosing the allegations against him. Compl. at 2-3. To

state a procedural due process claim, Pugh must allege that he was (1) “deprived []
of an individual liberty interest that is encompassed within the Fourteenth
Amendment’s protection, and (2) the procedures [] made available to him did not
provide due process of law.” Steele v. Cicchi, 855 F.3d 494, 507 (3d Cir. 2017). To

state a substantive due process claim, he must allege: “1) an actor engaged in conduct
under color of state law; 2) a deprivation of [his] protected liberty interest by that
conduct; and 3) the deprivation shocks the conscience.” Ashton v. City of Uniontown,

? See West, 487 U.S. at 49 (“[A]cting under color of state law requires that the
defendant in a § 1983 action have exercised power possessed by virtue of state law
and made possible only because the wrongdoer is clothed with the authority of state
law.” (internal quotations marks and citation omitted)). 459 F. App’x 185, 189 (3d Cir. 2012) (citing Chainey v. Street, 523 F.3d 200, 219 (3d Cir. 2008)).
Here, both of Pugh’s due process claims fail for the straightforward reason
that he has not plausibly alleged that Defendants deprived him of any protected
liberty interest. Pugh asserts that Defendants infringed his “liberty interests in family
integrity, reputation, and freedom from arbitrary state intrusion.” Compl. at 3. But
the facts he pleads do not rise to the level of a deprivation of any of those interests.
Pugh plainly has a liberty interest in the integrity of his family.'? But nothing
in the Complaint suggests that Defendants deprived him of that interest. To the

contrary, Defendants’ brief investigation was closed without any formal action. ECF
8-2. Defendants did not physically remove his children, coercively separate him
from his family, or otherwise interfere with his parental relationship in any
comparable way.'' Absent any such interference, Pugh has not shown a deprivation
of his liberty interest in family integrity.

10 “The Due Process Clause of the Fourteenth Amendment prohibits the government
from. interfering in familial relationships unless the government adheres to the
requirements of procedural and substantive due process.” Croft v. Westmoreland
Cnty. Child. & Youth Servs., 103 F.3d 1123, 1125 (3d Cir. 1997); see also Troxel v.
Granville, 530 U.S. 57, 65 (2000) (stating that a parent’s liberty interest in the “care,
custody, and control of their children—is perhaps the oldest of the fundamental
liberty interests recognized by this Court”).
"Cf, B.S. v. Somerset Cnty., 704 F.3d 250, 271 (Gd Cir. 2013) (mother’s liberty
interest was implicated where her child was removed from her custody and
transferred to child’s father); Croft, 103 F.3d at 1125 n.1, 1127 (child services
caseworker interfered with a father’s constitutional right to family integrity where

His reputational theory fares no better. Although an individual in some sense
“has a protectable interest in reputation,” it is well accepted that “reputation alone is

not an interest protected by the Due Process Clause.” Hill v. Borough of Kutztown, 455 F.3d 225, 235-36 (3d Cir. 2006) (citations omitted); see also Conn. Dep t of Pub.
Safety v. Doe, 538 U.S. 1, 6-7 (2003) (“[M]ere injury to reputation, even if
defamatory, does not constitute the deprivation of a liberty interest.”). Instead, a
plaintiff must satisfy the familiar “stigma-plus” test by showing “a stigma to his
reputation plus deprivation of some additional right or interest.” Hill, 455 F.3d at
236 (citing Paul v. Davis, 424 U.S. 693, 701 (1976)). Even assuming Pugh could
satisfy the stigma prong,’ he does not plausibly allege the required “plus.” He does

not allege that the investigation altered his legal status, affected his custody rights,
resulted in prosecution, or caused any other comparable deprivation.'? The
investigation, standing alone, will not suffice.

caseworker “blatantly coerc[ed]” father to leave his home and have no contact with
his daughter by threatening to remove the daughter and place her in foster care if he
failed to comply); Miller v. City of Philadelphia, 174 F.3d 368, 371 (3d Cir. 1999)
(defendants interfered with mother’s liberty interest by removing two of her children
from her custody).
To satisfy the stigma prong, Pugh must allege that Defendants publicly
disseminated stigmatizing statements about him and that those statements were false. Id. He alleges neither.
'3 To be sure, courts have found the “plus” satisfied where a plaintiff was wrongly
classified as a sex offender and that classification carried some additional legal
consequence. See, e.g., Vega v. Lantz, 596 F.3d 77, 82 (2d Cir. 2010); Kirby vy.
Siegelman, 195 F.3d 1285, 1292 (11th Cir. 1999); Neal v. Shimoda, 131 F.3d 818,
829 (9th Cir. 1997). But that is not this case. Pugh was already subject to sex-

Nor does Pugh’s asserted interest in “freedom from arbitrary state intrusion”

carry the day. Stated at that level of generality, the asserted interest is too amorphous
to qualify as a cognizable liberty interest. The Supreme Court has cautioned that
“conferring constitutional status upon a previously unrecognized ‘liberty’...
require[s] ‘a careful description of the asserted fundamental liberty interest.’” Kerry

v. Din, 576 U.S. 86, 93 (2015) (Scalia, J. plurality opinion) (quoting Washington v.
Glucksberg, 521 U.S. 702, 721 (1997)). In Kerry, the plurality rejected, among other
things, a claimed “liberty interest of a U.S. citizen . . . to be free from arbitrary
restrictions on his right to live with his spouse.” Jd. Other district courts have
likewise rejected similarly generalized formulations. See, e.g., Olesen v. Morgan, 2009 WL 2045682, at *6 (N.D.N.Y. July 8, 2009) (rejecting an asserted interest in
“the right to conduct [one’s] business free from harassment”); Zeran v. Hagopian, 2009 WL 900743, at *6 (E.D. Cal. Mar. 31, 2009) (rejecting a claimed “liberty
interest to be free from harassment and intimidation”). The facts alleged here lead

me to the same result. A generalized interest in being left alone by government
investigators is not the kind of discrete liberty interest due process protects.

offender registration by virtue of his prior convictions. Bennett’s interview did not
further alter his legal status or impose any additional state-created burden.

10

Pugh, then, has not plausibly alleged that Defendants deprived him of any
protected liberty interest. That failure defeats both his procedural and substantive
due process theories. See Kerry, 576 U.S. at 90 (stating that “no process is due if one
is not deprived of ‘life, liberty, or property”); Nicholas v. Pa. State Univ., 227 F.3d
133, 139-40 (3d Cir. 2000) (explaining that, to sustain a substantive due process
claim, “a plaintiff must establish as a threshold matter that he has a protected []
interest to which the Fourteenth Amendment’s due process protection applies.”
(citation omitted)). I therefore will dismiss Pugh’s due process claims.

B. Equal Protection
Pugh next alleges that Defendants violated his equal protection rights by
singling him out “solely because of his Megan’s Law status” even though, in his
view, there is “no connection between [his] underlying offense and children.”
Compl. at 3. At its core, “the Equal Protection Clause requires equal treatment of all

persons similarly situated.” Stradford v. Sec’y Pa. Dep t of Corr, 53 F.4th 67, 73 (3d
Cir. 2022).
Equal protection claims generally proceed in one of two ways. First, a plaintiff
may allege that the government treated him differently because of his or her
membership in a particular class or group. See Renchenski v. Williams, 622 F.3d 315,
337 (3d Cir. 2010). In that circumstance, a plaintiff must show, not only that they
have been treated differently from other similarly situated non-members, but that

11

“the Government’s explanation for the differing treatment does not satisfy the
relevant level of scrutiny.” Stradford, 53 F.4th at 73 (citation omitted). If the
challenged action targets a suspect class, such as race, alienage, or national origin,
courts apply strict scrutiny. See Renchenski, 622 F.3d at 337. If, however, the state
action does not target a suspect class, it “must be upheld if there is any reasonably
conceivable state of facts that could provide a rational basis” for the different
treatment. /d. (citation omitted). Second, a plaintiff may proceed under a “class of
one” theory, which applies “where the plaintiff [does] not allege membership in a
class or group.” Vill. of Willowbrook v. Olech, 528 U.S. 562, 564 (2000). To state
such a claim, “a plaintiff must allege that (1) the defendant treated him differently
from others similarly situated, (2) the defendant did so intentionally, and (3) there

was no rational basis for the difference in treatment.” Hill, 455 F.3d at 239.
Under the first theory, Pugh’s claim fails at the threshold because he does not
identify any similarly situated non-members, that is, any non-Megan’s Law
registrants who were treated differently. More specifically, he does not identify any
similarly situated individual who was not subject to investigation despite comparable
allegations of child endangerment. That omission is fatal to Pugh’s claim. See
Stradford, 53 F.Ath at 74 (“[T]he failure to identify similarly situated persons dooms

an equal-protection claim.”).

12

Yet even if he could identify such individuals, his claim would still fail. “[S]ex
offenders do not belong to a suspect or quasi-suspect class.” Jd. at 74 n.3. So rational-
basis review applies. Under that standard, the challenged distinction survives so long
as there is a “rational relationship between the disparity of treatment and some
legitimate governmental purpose.” Jd. at 77. Protecting vulnerable individuals,
especially children, from abuse and sexual exploitation is plainly a legitimate state
interest. Artway v. Att’y Gen. of State of N.J., 81 F.3d 1235, 1267 (3d Cir. 1996). And
it is rationally related to that interest for the State to treat sex offenders as posing
greater risks to children than the public at large, even when a particular offender’s
underlying offense did not involve a child victim." See, e.g., Doe v. Miller, 405 F.3d
700, 716 (8th Cir. 2005) (upholding restrictions on residing near schools for sex
offenders even without an individualized showing that the particular offender had
previously victimized children).
Nor can Pugh maintain an equal protection claim based on the “class of one”
theory. Again, he identifies no similarly situated individuals who were treated
differently. In this setting, that would mean at least some other Megan’s Law

'4 Indeed, “a community can rationally fear sex offenders more than other criminals
because sex offenders target vulnerable individuals” and “typically have a higher
risk of recidivism.” Stradford, 53 F.4th at 77-78 (emphasis added) (internal
quotation marks and citations omitted).
13

registrant who was not investigated under comparable circumstances.'° Pugh alleges
none and therefore his claim cannot proceed. See Hill, 455 F.3d at 239 (dismissing a
“class of one” claim because the plaintiff “d[id] not allege the existence of similarly
situated individuals . . . who [defendant] treated differently”). Accordingly, Pugh
fails to state an equal protection claim under either theory, and I will dismiss that
claim.

C. Retaliation
Pugh’s final theory sounds in retaliation. He alleges that Bennett initiated the
investigation because he previously prevailed in a civil case against an unnamed
individual with whom Bennett allegedly has a personal relationship. Compl. at 3.

'S “Persons are similarly situated under the Equal Protection Clause when they are
alike in all relevant aspects” other than the asserted basis for differential treatment.
Startzell v. City of Philadelphia, 533 F.3d 183, 203 (3d Cir. 2008) (internal quotation
marks and citation omitted); see also Frompovicz v. Hissner, 843 F. App’x 427, 430
(3d Cir. 2021) (applying Startzell in the “class of one” context). Thus, in a class-
based claim, the proper comparators are persons “alike in all relevant respects”
except for membership in the class at issue. In a “class of one” claim, by contrast,
the proper comparators must match the plaintiff in all material respects relevant to
the challenged decision—including any membership in a class that bears on that
decision—so that the only remaining distinction is the differential treatment directed
at the plaintiff as an individual. See, e.g., Gianfrancesco v. Town of Wrentham, 712
F.3d 634, 640 (1st Cir. 2013) (“[A] class-of-one plaintiff bears the burden of showing
that his comparators are similarly situated in all respects relevant to the challenged
government action.”); Clubside, Inc. v. Valentin, 468 F.3d 144, 159 (2d Cir. 2006)
(“[C]lass-of-one plaintiffs must show an extremely high degree of similarity
between themselves and the persons to whom they compare themselves.”’).
14

As pleaded, Pugh’s claim is not properly grounded in the Fourteenth
Amendment. Retaliation under § 1983 is not a standalone claim but rather must be
anchored to the plaintiff’s exercise of a specific constitutional right. See Mirabella

v. Villard, 853 F.3d 641, 649 (3d Cir. 2017) (explaining that, to plead a retaliation
claim, a plaintiff must allege, inter alia, “constitutionally protected conduct’). To
the extent Pugh means to allege that Bennett retaliated against him for prior
litigation, that theory sounds in the First Amendment. See id., at 650-52 (analyzing
alleged retaliation for threatened litigation under the First Amendment); Lauren W.

ex rel. Jean W. v. DeFlaminis, 480 F.3d 259, 266 (3d Cir. 2007) (analyzing alleged
retaliation for pursuing administrative relief under the First Amendment). Mindful
of my obligation to construe Pugh’s complaint “liberally,” I will construe his claim
that way. Higgs, 655 F.3d at 339.
To state a First Amendment retaliation claim, Pugh must allege “(1)
constitutionally protected conduct, (2) retaliatory action sufficient to deter a person
of ordinary firmness from exercising his constitutional rights, and (3) a causal link
between the constitutionally protected conduct and the retaliatory action.”
Mirabella, 853 F.3d at 649. As to the first element, filing suit to vindicate one’s rights
is protected by the First Amendment. See Anderson v. Davila, 125 F.3d 148, 161 Gd
Cir. 1997) (“[A]n individual’s constitutional right of access to court is protected by
the First Amendment’s clause granting the right to petition the government for

15

grievances.”). But Pugh alleges no facts about the prior litigation beyond a passing
reference to it. He does not identify the defendant, describe the subject of the suit,
state when it was filed, or plead any other facts demonstrating the existence of the
alleged litigation. For the same reason, he does not plausibly allege a causal link
between the prior litigation and Bennett’s investigation.
More fundamentally, however, Pugh’s claim fails on the second element:
whether Bennett took sufficient retaliatory action. The alleged retaliatory act—a
brief investigation that was closed without consequence—is not the sort of action
that would “deter a person of ordinary firmness from exercising his constitutional
rights,” Mirabella, 853 F.3d at 649. See Fraternal Ord. of Police, Lodge I v. City of
Camden, 842 F.3d 231, 246 (3d Cir. 2016) (holding, in the FMLA context, that an
employer visiting and questioning an employee on protected FMLA leave was
“minimally intrusive” and not “sufficient to deter a person of ordinary firmness”
from exercising his or her rights); McKee v. Hart, 436 F.3d 165, 170 (3d Cir. 2006)
(holding that “criticism, false accusations, or verbal reprimands” are insufficient to
deter a person of ordinary firmness). If Bennett’s intent was to punish Pugh or scare

16

him off from future litigation, the effort was, to put it mildly, underwhelming. Pugh
therefore fails to state a retaliation claim,!® and I will dismiss that claim.!”

Accordingly, the following order is entered:

ORDER
AND NOW, this 8th of April, 2026, for the reasons set forth herein, IT IS
ORDERED that Defendants’ Motion to Dismiss (ECF 6) is GRANTED, and the
Complaint (ECF 1) is DISMISSED without prejudice. Pugh may file an amended

'6 Because I conclude that Pugh has not plausibly alleged a violation of his
constitutional rights, I need not reach whether Bennett is entitled to qualified
immunity. See Miller, 174 F.3d at 374 (stating that “[t]he proper approach” when a
qualified immunity defense is raised “is to ascertain whether a constitutional
violation has been alleged before determining if qualified immunity is available”).
'7 T will dismiss Pugh’s claims without prejudice and grant leave to amend.
Ultimately, the decision whether to permit amendment rests “within the discretion
of the District Court.” Grayson v. Mayview State Hosp., 293 F.3d 103, 108 (3d Cir.
2002). However, “[i]n pro se civil rights actions, ‘district courts must offer
amendment—irrespective of whether it is requested—when dismissing a case for
failure to state a claim unless doing so would be inequitable or futile.’” Coleman v.
Acad. Bus. LLC, 858 F. App’x 584, 585 Gd Cir. 2021) (quoting Fletcher-Harlee
Corp. v. Pote Concrete Contractors, Inc., 482 F.3d 247, 251 (3d Cir. 2007)). Here,
although Pugh’s claims suffer from myriad deficiencies, I cannot say amendment
would necessarily be futile in the same way it would be where claims are barred by
immunity, see, e.g., Kuku v. Bohler, 2024 WL 4867012, at *3 (D.N.J. Nov. 22, 2024),
or preclusion, see, e.g., Shah v. United States, 540 F. App’x 91, 95 (3d Cir. 2013).
Pugh is advised, however, that if he elects to amend and fails to cure the deficiencies
identified in this Opinion, his claims may be dismissed with prejudice. See Krantz v.
Prudential Invs. Fund Mgmt. LLC, 305 F.3d 140, 144 (3d Cir. 2002) (explaining that
“Ta] District Court has discretion to deny a plaintiff leave to amend where the
plaintiff was put on notice as to the deficiencies in his complaint, but chose not to
resolve them”).
17

complaint which must cure the defects identified in this Opinion. If Pugh chooses to
file an amended complaint, it must be filed on or before May 8, 2026. Failure to do

so may result in dismissal with prejudice.

IT IS FURTHER ORDERED that Pugh shall effectuate service of the
amended complaint, if any, and all service documents on Defendants on or before
May 8, 2026. Failure to do so may result in dismissal with prejudice.

/s/D. Brooks Smith

D. Brooks Smith
United States Circuit Judge
Sitting by Designation

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