JAMES WERNER, Sr. v. County of Northampton; Zachary R. Lysek, Coroner

1
NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 08-3423
___________
JAMES WERNER, Sr.,
Appellant,
v.
COUNTY OF NORTHAMPTON;
ZACHARY R. LYSEK, CORONER,
Appellees.
___________
On Appeal from the United States District Court
for the
Eastern District of Pennsylvania
(D.C. Civil No. 07-cv-01910)
District Judge: Honorable Thomas M. Golden
Submitted Under Third Circuit L.A.R. 34.1(a)
on October 27, 2009
Before: SLOVITER, FUENTES, and HARDIMAN Circuit Judges.
(Opinion Filed: October 29, 2009)
OPINION OF THE COURT
FUENTES, Circuit Judge:

-- 1 of 5 --

The District Court had jurisdiction under 28 U.S.C. § 1331. We have jurisdiction1
pursuant to 28 U.S.C. § 1291.
The facts section of Werner’s brief begins by stating that “[o]n May 12, 2006,2
James Werner, Jr., Werner’s son, committed suicide.” (Appellant’s Br. at 4.) However,
in his Second Amended Complaint, Werner alleged that “[t]he Plaintiff does not believe
that his son committed suicide, but instead, that his son died as the result of an
unfortunate accident.” (Second Am. Compl. ¶ 18.) This distinction is relevant to
Werner’s alleged violation of his liberty interest in his reputation.
2
James Werner appeals the District Court’s dismissal pursuant to FED. R. CIV. P.
12(b)(6) of his claim for deprivation of a liberty interest under 42 U.S.C. § 1983 and his
pendent state law cause of action for invasion of privacy. For the following reasons, we
will affirm the District Court.1
I.
Because we write primarily for the parties, we only discuss the facts and
proceedings to the extent necessary for resolution of this case. This case presents a series
of facts that, while deeply troubling, do not provide a basis for Werner’s Section 1983
claim. On May 12, 2006, Plaintiff’s son, James Werner Jr., either committed suicide or
died as the result of an accident in the family home. Defendant Zachary Lysek, the2
County Coroner, and his assistant were called to the scene. Photos were taken of the
body. These photos ended up in the possession of the deputy coroner’s son, who showed
them to fellow students at his high school and posted them on his personal website, with
the caption “There is no better way to kill yourself.” After this incident, Lysek called

-- 2 of 5 --

We exercise plenary review over a district court’s dismissal under FED. R. CIV. P.3
12(b)(6). Atkinson v. Lafayette College, 460 F.3d 447, 451 (3d Cir. 2006).
3
Werner and apologized for the publication of the photos. Werner’s attorney subsequently
wrote to the county district attorney requesting an investigation. In a letter in response,
the district attorney stated that the actions did not easily fit within a criminal statute.
Werner then filed his Complaint, alleging violations of his liberty interest in his
reputation and good name pursuant to 42 U.S.C. § 1983 and state law claims for invasion
of privacy. The District Court dismissed his Amended Complaint on December 21, 2007,
but granted leave to further amend his pleadings. His Second Amended Complaint was
dismissed by the court’s July 8, 2008 Order, which is the subject of this appeal.3
II.
To bring a claim under 42 U.S.C. § 1983, a plaintiff must show that he was
deprived of a federal constitutional or statutory right by a person acting under state law.
Elmore v. Cleary, 399 F.3d 279, 281 (3d Cir. 2005). Werner’s alleged deprivation of his
liberty interest in his reputation relies upon the “stigma-plus” test. Under this test, “to
make out a due process claim for deprivation of a liberty interest in reputation, a plaintiff
must show a stigma to his reputation plus deprivation of some additional right or
interest.” Hill v. Borough of Kutztown, 455 F.3d 225, 236 (3d Cir. 2006). Werner raises
one issue on appeal, claiming that the District Court erred in holding that he failed to
satisfy the “stigma-plus” test.

-- 3 of 5 --

4
The District Court held that – assuming arguendo that Lysek was grossly negligent
in not securing the photos and that this behavior constituted state action – Werner’s
pleading still failed to satisfy either prong of the “stigma-plus” test. The “stigma” prong
requires that a plaintiff allege that the stigmatizing statement be 1) made public and 2)
false. Id. The District Court, deeming the death scene photographs to be the relevant
statement, found that Plaintiff failed to allege that these photographs were false. A
review of the Second Amended Complaint confirms this conclusion, as Werner declared
that the photographs “depict or tend to depict a false situation to third parties who saw the
photographs on the internet,” “were misleading” and “fueled the false impression that the
Plaintiff’s son committed suicide.” (Second Am. Compl. ¶¶ 17, 19.) Nowhere, however,
does he allege the photographs were false or elaborate on how they were misleading.
According to Werner, the central thrust of his Complaint was that his son did not
commit suicide and the website that depicted the photos claimed the exact opposite. This
claim is rendered confusing by Werner’s brief’s statement of facts, which begins by
stating that his son did commit suicide. Regardless of this inconsistency, a close reading
of the Second Amended Complaint does not support Werner’s contention that it alleged
the website falsely stated that his son had committed suicide. This argument therefore
does not alter our review of the District Court’s analysis. Having failed to allege the
falsity of the statement at issue, Werner failed to state a claim under the “stigma-plus” test
and his Second Amended Complaint was properly dismissed on this basis.
The District Court also held that Plaintiff failed to satisfy the “stigma-plus” test’s

-- 4 of 5 --

5
second prong – the deprivation of an additional right or interest. Werner failed to address
this conclusion in his appeal. He does discuss in his brief the nature of privacy and
parental rights, but his Second Amended Complaint does not present privacy as the
“additional right or interest” necessary to satisfy the “stigma-plus” test. To the extent
privacy is discussed, he defines the privacy right at issue as his and his family’s right “to
enjoy a certain status and reputation in the community.” (Second Am. Compl. ¶ 50.)
This is indistinguishable from the stigma or reputation harm component of his claim, and
therefore not “additional.” Ultimately, having upheld the court’s determination that
Werner did not satisfy the test’s first prong, we need not reach this issue.
For the foregoing reasons, we will affirm the District Court.

-- 5 of 5 --