John McTernan; Edward D. Snell; John Wood; Luanne C. Ferguson v. City of York, Pennsylvania

Hon. Louis H. Pollak, Senior Judge, United States District*
Court for the Eastern District of Pennsylvania, sitting by
designation.
PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 07-2670
JOHN MCTERNAN; EDWARD D. SNELL; JOHN WOOD;
LUANNE C. FERGUSON
Appellants
v.
CITY OF YORK, PENNSYLVANIA;
MARK L. WHITMAN, POLICE
COMMISSIONER, IN HIS OFFICIAL CAPACITY;
JASON JAY, OFFICER, IN HIS OFFICIAL CAPACITY
PLANNED PARENTHOOD OF CENTRAL
PENNSYLVANIA,
Intervenor in District Court
On Appeal from the United States District Court
for the Middle District of Pennsylvania
(D.C. No. 07-cv-00088)
District Judge: Honorable John E. Jones, III
Submitted Under Third Circuit LAR 34.1(a)
January 12, 2009
Before: SLOVITER and BARRY, Circuit Judges, and
POLLAK , District Judge*

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(Filed August 24, 2009 )
________
Dennis E. Boyle
Randall L. Wenger
Boyle, Neblett & Wenger
4660 Trindle Road, Suite 200
Camp Hill, PA 17011-0000
Attorneys for Appellants
Frank J. Lavery, Jr.
James D. Young
Lavery, Faherty, Young & Patterson
225 Market Street , Suite 304
P.O. Box 1245
Harrisburg, PA 17108-0000
Attorneys for Appellees
Sean E. Summers
Barley Snyder
100 East Market Street
P.O. Box 15012
York, PA 17405-0000
Attorney for Intervenor
________
OPINION OF THE COURT
________
SLOVITER, Circuit Judge.
We address this case in light of our recent decisions in
McTernan v. City of York, 564 F.3d 636 (3d Cir. 2009), Holman
v. City of York, 564 F.3d 225 (3d Cir. 2009), and Snell v. City of
York, 564 F.3d 659 (3d Cir. 2009). Although this case, like
those cases, involves protestors at a health facility where

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abortions are performed, in this case the protestors seek to
protest on a handicapped entrance ramp to the facility. Because
doing so would block handicapped access to the ramp, and the
protestors have the opportunity to stand immediately next to the
ramp on the public sidewalk and communicate to those entering
the facility, we affirm the District Court’s decisions denying the
preliminary injunction Plaintiffs sought and dismissing their
action.
I.
Factual Background
The complaint alleges that the four plaintiffs (appellants
on appeal), John McTernan, Edward D. Snell, John Wood, and
Luanne C. Ferguson (collectively, the “Plaintiffs”), profess
devout Christian beliefs, including a belief that their religion
requires them to share these beliefs with others. Based on these
religious beliefs, Plaintiffs protested against abortions outside a
Planned Parenthood facility in the City of York, Pennsylvania
(the “Facility”).
The Facility is situated next to a public sidewalk and has a
ramp leading to its front entrance that runs parallel to the
sidewalk. The ramp has handrails on either side as well as a
canopy above. A survey conducted by Plaintiffs showed that 2.9
feet of the ramp were constructed on the public right of way.
Based on this survey, McTernan sent a letter dated
November 22, 2006, to Mark L. Whitman, the Commissioner of
the York City Police Department, “requesting that [Whitman]
require [Planned Parenthood] to . . . remove the section that
encroaches and extends over the property line.” App. at 65. In
this letter, McTernan also stated that he had notified the CEO of
Planned Parenthood of the violation and requested that she cease
hanging banners, at least one of which stated, inter alia, “Pledge-
A-Protestor Campaign in Effect Today,” App. at 66, between the
canopy and the railing of the ramp. McTernan’s letter noted that
when the banners were still hanging two days later, he asked the
on-site supervisor to remove them because they were in the

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public right of way. She declined to do so.
On November 29, 2006, Jason Jay, an officer with the
City of York Police Department, was on duty outside the
Facility. Plaintiffs, noting that a portion of the ramp and the
banner was located on the public right of way, sought permission
from Officer Jay to go on the ramp to communicate with clients
entering the Facility. Officer Jay refused them permission,
telling Plaintiffs that he would arrest them for trespass if they
went on the ramp.
These allegations formed the basis of Plaintiffs’ suit
against Officer Jay, Commissioner Whitman, and the City of
York, Pennsylvania (collectively, the “Defendants”), claiming
violations of Plaintiffs’ rights to the free exercise of religion,
peaceful assembly, and freedom of speech. Plaintiffs sought (1)
a declaratory judgment that Defendants’ failure to allow them on
the ramp was unconstitutional, (2) temporary and permanent
injunctions restraining Defendants from prohibiting Plaintiffs
access to the ramp, and (3) nominal damages, and costs and
attorneys’ fees.
The same day the complaint was filed, Plaintiffs filed a
motion for a preliminary injunction to prevent Defendants from
interfering with their “free exercise rights” and “First
Amendment rights.” App. at 77-78. The District Court held an
evidentiary hearing on the preliminary injunction request.
Shortly thereafter, Defendants filed a motion to dismiss, relying
on federal regulations issued under the Americans with
Disabilities Act (“ADA”) governing handicapped accessible
ramps. They cited, for example, 28 C.F.R. Part 36, App. A,
which requires that ramps for handicapped accessible buildings
and facilities include a clear width of 36 inches, 28 C.F.R. Part
36, App. A § 4.8.3, a level landing at both the bottom and the top
of the ramp, id. at § 4.8.4, edge protection for ramps like the one
in question, which has a dropoff, id. at § 4.8.7, and handrails
along both sides of the ramp, id at § 4.8.5(1). All of the
requirements are applicable to the Facility. Additionally, as the
Facility provides medical services, the ramp leading to the
Facility must have an overhead canopy or overhanging roof. Id.

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at § 6.2.
At the preliminary injunction hearing, Defendants
presented testimony from David Redshaw, who had been the
Building Code Inspector for the City of York from September
2004 to December 2004, during which time he oversaw the
renovation of the front of the Facility, including the construction
of the ramp. Prior to working as the Building Code Inspector,
Redshaw “was the rehab specialist for the Bureau of Housing
Services for nearly five years.” App. at 255. During that period,
Redshaw became familiar with the various state and federal
codes and regulations related to accessibility requirements.
Redshaw testified that it was York policy to permit an
encroachment onto the public right of way when the intrusion
was de minimis and was necessary to allow construction of a
handicapped accessibility ramp. An intrusion was considered de
minimus when the ramp encroached no more than three feet onto
the sidewalk and left at least five feet of sidewalk remaining.
Redshaw was personally aware of at least two other businesses
in York with handicapped ramps encroaching in this manner on
the public right of way, and had noticed other buildings
encroaching on the sidewalk in a similar manner.
When Redshaw was asked “Are there any accessability
issues, based on your experience, with people standing or
congregating on a handicap accessible ramp that are not issues
with the public sidewalk?”, he replied that “[t]he building codes
state that you may not obstruct or reduce the accessibility of this
means of egress.” App. at 268-69. Indeed, a regulation
promulgated in connection with the ADA provides: “In buildings
or facilities, or portions of buildings or facilities, required to be
accessible, accessible means of egress shall be provided in the
same number as required for exits by local building/life safety
regulations.” 28 C.F.R. Part 36, App. A § 4.1.3(9). The
regulation also defines “means of egress” as “[a] continuous and
unobstructed way of exit travel from any point in a building or
facility to a public way.” Id. at § 3.5.
After the hearing, the District Court denied the motion,

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finding that the ramp was a nonpublic forum. The Court
concluded that because the static presence of a person on the
ramp area, even if solely over the public right of way, would
impede access, “it is entirely reasonable for Officer Jay to
instruct individuals not to stand or congregate on the ramp.”
App. at 15. The Court further stated, “It is plain common sense
that if an individual other than the fictional Ichabod Crane stood
in the area of the ramp that encroaches onto the public right-of-
way, there would necessarily be less than the required minimum
clear width of 36 inches between the handrails as required by the
ADA.” App. at 12.
The District Court also held that, because Plaintiffs “are
not hindered in delivering their message in the vicinity of [the
Facility],” they would not be denied their First Amendment
rights if the injunction were not granted. App. at 17. Moreover,
the Court concluded that the City of York would be harmed if
handicapped access to buildings were affected, a concern that
was also within the public interest. The District Court therefore
denied the preliminary injunction. Based on its ruling that the
ramp was a nonpublic forum and that Plaintiffs had therefore
suffered no constitutional injury, the District Court granted the
motion to dismiss shortly thereafter.
II.
Standard of Review
The appeal was timely filed and this court properly has
jurisdiction over both issues under 28 U.S.C. § 1291. This court
reviews the District Court’s decision on a motion to dismiss de
novo. AT&T v. JMC Telecom, LLC, 470 F.3d 525, 530 (3d Cir.
2006). We have stated that, “[i]n deciding a motion to dismiss,
all well-pleaded allegations of the complaint must be taken as
true and interpreted in the light most favorable to the plaintiffs,
and all inferences must be drawn in favor of them.” Schrob v.
Catterson, 948 F.2d 1402, 1408 (3d Cir. 1991) (citation
omitted). In addition to the complaint itself, the court can
review documents attached to the complaint and matters of
public record, Lum v. Bank of America, 361 F.3d 217, 221 n.3

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(3d Cir. 2004), and a court may take judicial notice of a prior
judicial opinion.
Ordinarily, when reviewing a decision to grant or deny a
preliminary injunction, this court reviews a district court’s
findings of fact for clear error, conclusions of law de novo, and
the ultimate decision to grant or deny the preliminary injunction
for an abuse of discretion. Child Evangelism Fellowship of N.J .
v. Stafford Twp. Sch. Dist., 386 F.3d 514, 524 (3d Cir. 2004).
However, when First Amendment rights are implicated, this
court must conduct an independent examination of the factual
record as a whole. Id.
III.
Discussion
This appeal concerns a preliminary injunction and a
related motion to dismiss. We will address the preliminary
injunction first, following the order in which they were
addressed by the District Court.
A. The Preliminary Injunction
When deciding whether to issue a preliminary injunction,
a district court must consider: “(1) whether the movant has
shown a reasonable probability of success on the merits; (2)
whether the movant will be irreparably injured by denial of the
relief; (3) whether granting preliminary relief will result in even
greater harm to the nonmoving party; and (4) whether granting
the preliminary relief will be in the public interest.” United
States v. Bell, 414 F.3d 474, 478 n.4 (3d Cir. 2005).
1. Probability of Success on the Merits
Plaintiffs’ motion for the preliminary injunction asked the
Court to enjoin the City and its officials from interfering with the
“Plaintiffs[’] free exercise rights in front of the Planned
Parenthood facility” and to “[e]njoin the City of York from
enforcing trespass statutes against the Plaintiffs in areas where

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they are not physically on Planned Parenthood’s property.” App.
at 77-78.
Defiant trespass is defined under Pennsylvania law to
include “enter[ing] or remain[ing] in any place as to which
notice against trespass is given by . . . actual communication to
the actor.” 18 Pa. C.S.A. § 3503(b)(1). It is a defense to defiant
trespass that “the premises were at the time open to members of
the public and the actor complied with all lawful conditions
imposed on access to or remaining in the premises.” Id. at §
3503(c)(2). As it is undisputed that Plaintiffs had been told not
to stand on the ramp, the question becomes whether the premises
were open to members of the public and, if so, whether the
conditions placed on the use of those premises that restrict the
protestors’ First Amendment rights survive the appropriate level
of scrutiny.
a. The Type of Forum at Issue
The City offers no support for its assertion that the ramp
should be considered private property. We will therefore accept
that a portion of the ramp is located on public property. That is
not dispositive, however, because we must first determine the
type of forum that is at issue. Arkansas Educ. Television
Comm’n v. Forbes, 523 U.S. 666, 677 (1998).
The Supreme Court has identified three types of fora: “the
traditional public forum, the public forum created by government
designation, and the nonpublic forum.” Id. (quoting Cornelius v.
NAACP Legal Def. & Educ. Fund, Inc., 473 U.S. 788, 802
(1985)). Designated public fora must be “created by purposeful
governmental action.” Arkansas Educ. Television Comm’n, 523
U.S. at 677. As none of the parties argue that the government
has made the ramp in this case a designated public forum, it must
be either a traditional public forum or a nonpublic forum.
Although public sidewalks have long been considered
traditional public fora, Madsen v. Women's Health Center, Inc.,
512 U.S. 753, 761 (1994), the Supreme Court has clarified that
not all public sidewalks are public fora. In United States v.

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Kokinda, the Court distinguished a sidewalk that ran between a
post office parking lot and a post office from a quintessential
public sidewalk because, rather than being part of the
transportation grid of the city, the sidewalk “was constructed
solely to provide for the passage of individuals engaged in postal
business.” 497 U.S. 720, 727-28 (1990). The Court specifically
noted that “[p]ostal entryways . . . may be open to the public, but
that fact alone does not establish that such areas must be treated
as traditional public fora under the First Amendment.” Id. at
729. “Because the ‘sidewalk at issue [did] not have the
characteristics of public sidewalks traditionally open to
expressive activity,’ the Court held that it was a nonpublic
forum.” See Kokinda, 497 U.S. at 727.
Here, the District Court analogized the sidewalk at issue
to the postal sidewalk considered in Kokinda, stating:
The Planned Parenthood ramp bears a striking
resemblance to the sidewalk in Kokinda. Like the
Kokinda sidewalk, the Planned Parenthood ramp runs
parallel to the street-level sidewalk, which is a public
passageway. They both lead from the parking area to the
front door of the facility and were constructed solely for
the passage of individuals engaged in business at the
facility. Additionally, the Planned Parenthood ramp was
constructed for the specific purpose of complying with the
ADA, thereby ensuring that disabled patrons of the
facility were able to negotiate the space between the
parking area and the entrance of the facility. There is
nothing in the record establishing that the ramp was
constructed to facilitate expressive activity, daily
commerce, or the life of the neighborhood. To the
contrary, the ramp’s purpose was singular, to effectuate
access of patrons, both able and disabled, to the Planned
Parenthood facility. To find otherwise would be absurd.
App. at 14-15 (emphasis in original).
We agree with the reasoning of the District Court. The
diagram and images of the ramp in question in the appendix

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make clear that there is no way to build an entrance ramp to the
Facility that would comply with the ADA that would not rest on
top of a portion of what was formerly a public sidewalk.
However, the ramp is distinct from the sidewalk and serves a
separate purpose. We agree with the District Court that any
other conclusion would be “absurd.” App. at 15. We conclude,
as did the District Court, that the ramp is a nonpublic forum.
b. The Relevant Level of Scrutiny
We must next consider whether the restriction placed on
that nonpublic forum, preventing the protestors from standing on
it, is reasonable and not an effort to block expression merely
because the government disagrees with the view of the speaker.
Kokinda, 497 U.S. at 730. “[C]onsideration of a forum’s special
attributes is relevant to the constitutionality of a regulation since
the significance of the governmental interest must be assessed in
light of the characteristic nature and function of the particular
forum involved.” Id. at 732 (alteration in original) (quoting
Heffron v. Int’l Soc. for Krishna Consciousness, Inc., 452 U.S.
640, 650-51 (1981)).
In this case, the ramp is the size required for a
handicapped accessible ramp and is designed for people to enter
and exit the Planned Parenthood Facility. The record shows that
if a person were to stand on the ramp it would no longer have the
required handicapped clearance and the presence of a static body
would block access to one of the two required handrails. It is
also relevant that because the ramp parallels the sidewalk, a
protestor can walk next to someone entering the building and
continue talking to that person. In light of the availability of a
protestor’s access to the desired audience, it is certainly not
unreasonable to preclude the protestor from standing on the
ramp itself, thereby blocking the handicapped accessibility of the
structure.
This case therefore differs from our prior McTernan
decision, which held that the reasonableness of prohibiting a
protestor from walking in an alley adjacent to the Facility while
allowing persons associated with the Facility to walk in the alley

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was a jury question. McTernan, 564 F.3d at 656. Not only was
the alley in that case a traditional public forum, but questions
remained as to whether the restrictions imposed were necessary
for the safety of those in the alley, which depended on the traffic
level and protestor activity, among other factors. Id. No such
questions are present in this case, where the forum is non public,
and the restrictions are the reasonable and necessary response to
ADA regulations. See 28 C.F.R. Part 36, App. A §§ 3.5,
4.1.3(9).
The District Court did not hold merely that Plaintiffs were
unlikely to succeed on the merits; it held instead that they had no
chance of success on the merits. We see no reason to disturb
those conclusions. Although that holding is dispositive on the
appeal of the order denying the preliminary injunction, we turn
to the remaining factors relevant to the preliminary injunction as
they may also have an impact on our review of the dismissal
order.
2. Irreparable Injury
The District Court acknowledged that loss of First
Amendment freedom for any period of time can be considered
irreparable harm, but stated that such harm had not occurred in
this case in light of its holdings that the ramp was not a public
forum and the regulation was reasonable.
We agree with the District Court that there was no
irreparable harm because there was no harm of any type. The
protestors were told they were allowed to protest on the public
sidewalk next to the ramp. We have previously upheld
regulations that resulted in a far greater reduction in the ability to
communicate, even when the forum at issue was considered a
public forum.
In Startzell v. City of Philadelphia, 533 F.3d 183 (3d Cir.
2008), Philly Pride, an organization for lesbian, gay, bisexual,
and transgendered (“LGBT”) individuals, organized OutFest, an
annual street festival to celebrate “National Coming Out Day.”
Id. at 189. The event took place on the streets and sidewalks of

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a number of city blocks, an area which was closed off for the
event by permit. Id. The events were free and open to the
public. Id. Repent America, an organization whose members
believe that homosexuality is a sin and that they have a religious
duty to share this view with others, entered OutFest to
communicate their message. Id. at 190-91. They did so by
congregating near an OutFest stage and “singing loudly, playing
instruments, displaying large signs, and using microphones and
bullhorns.” Id. at 191.
When a musical program began on the stage, the
members of Repent America were ordered by police to move
further away from the stage. Id. After receiving complaints that
the protesters were blocking access to vendors at OutFest, the
police requested the protestors to move again. Id. They were
asked to move to a location near a popular gay bar within the
vicinity of OutFest, but they refused. Id. After an oral warning
by the police, the protestors were arrested for disorderly conduct.
Id. Of relevance to this appeal, their subsequent suit against the
city included a First Amendment claim that Philadelphia had
impermissibly prohibited their speech based on content. Id.
On appeal from an order of dismissal, this court noted
that “‘[n]othing in the Constitution requires the Government
freely to grant access to all who wish to exercise their right to
free speech on every type of Government property without
regard to the nature of the property or to the disruption that
might be caused by the speaker’s activities.’” Id. at 196 (quoting
Cornelius, 473 U.S. at 799-800).
In analyzing whether the new location had provided the
ample alternative channel required for regulation of speech in a
public forum, we noted that:
Although “[a]n alternative is not ample if the speaker is
not permitted to reach the ‘intended audience,’” Bay Area
Peace Navy v. United States, 914 F.2d 1224, 1229 (9th
Cir.1990) (citation omitted), that is not what occurred
here. Admittedly, Appellants’ intended audience was the
LGBT OutFest attendees, whom they wanted to instruct

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about what they believed were the sins of homosexuality.
The police officers’ direction that Appellants move to a
less congested area, albeit still within OutFest, may have
reduced their potential audience. Nonetheless, Appellants
have not demonstrated that the avenues that remained
were inadequate.
Id. at 202. While the protestors in Startzell had admittedly
experienced a diminution in their potential audience, nothing of
the sort occurred here. The protestors here still have access to
every person entering the clinic through the ramp, as they can
walk alongside the ramp next to that person, mere inches from
where they wished to be. We therefore reaffirm that the
protestors have suffered no injury from such a restriction.
3. Likelihood of Harm to the Defendants
Turning to the third issue to be considered in the
preliminary injunction inquiry, the District Court noted that
allowing the protestors on the ramp would prevent someone in a
wheelchair from using the ramp and could lead to violence
between protestors and the patrons of the Planned Parenthood
Facility. We agree that even a partial blocking of handicapped
access to the building is an important harm to the Facility,
significant enough to uphold the District Court ruling for that
reason alone. We therefore need not consider whether the
District Court’s concern about possible violence had a basis in
the record.
4. The Public Interest
Finally, we look to the public interest. The District Court
noted that the public interest favors both guaranteeing First
Amendment rights and allowing handicapped access to
buildings. However, as discussed supra, the protesters have not
experienced a diminution in their First Amendment rights
because they are allowed to protest in the immediate vicinity of
the ramp despite being prohibited on the ramp itself. It follows
that the only remaining public interest presented by the case is
that of ensuring unrestricted handicapped access to facilities.

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Thus, the public interest factor also supports denial of the
injunction.
As the protesters have suffered no diminution in their
rights, and the interest of Defendants and the public both favor
denying the motion for a preliminary injunction, we will affirm
the District Court’s order denying the motion for a preliminary
injunction.
B. The Motion to Dismiss
We must review the District Court’s grant of the motion
to dismiss Plaintiffs’ complaint in light of the Supreme Court’s
recent discussion of motions to dismiss in Ashcroft v. Iqbal, —
U.S. —, 129 S. Ct. 1937 (2009). In that opinion, the Court
clarified some of the uncertainty as to the scope of its prior
opinion in Bell Atlantic Corp. v. Twombly, 550 U.S. 554 (2007),
and forcefully held that Twombly was not limited to antitrust
complaints but instead enunciated the standard applicable to
review of all complaints. Thus, “[t]o survive a motion to
dismiss, a complaint must contain sufficient factual matter,
accepted as true, to ‘state a claim to relief that is plausible on its
face.’” Iqbal, 129 S. Ct. at 1949 (citing Twombly, 550 U.S. at
570). The Court emphasized that “only a complaint that states a
plausible claim for relief survives a motion to dismiss.” Id. at
1950. Moreover, it continued, “[d]etermining whether a
complaint states a plausible claim for relief will . . . be a context-
specific task that requires the reviewing court to draw on its
judicial experience and common sense.” Id. (citation omitted).
It is in light of that instruction that we review Plaintiffs’
argument that the District Court erred in this case in granting the
motion to dismiss.
Plaintiffs argue that the District Court erred in relying on
the findings and conclusions it reached in its ruling denying
Plaintiffs’ motion for a preliminary injunction. In most
instances, a ruling such as that made by the District Court under
Fed. R. Civ. P. 12(b)(6) would have to undergo the more
extended process required by Rule 56. However, we have
previously suggested that a district court’s findings and

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conclusions on a preliminary injunction motion could “have
preclusive effect if the circumstances make it likely that the
findings are ‘sufficiently firm’ to persuade the court that there is
no compelling reason for permitting them to be litigated again.”
Hawksbill Sea Turtle v. Federal Emergency Mgmt. Agency, 126
F.3d 461, 474 n.11 (3d Cir. 1997) (citations omitted). In
Hawksbill, we noted the language in Commodity Futures
Trading Commission v. Board of Trade, 701 F.2d 653, 657 (7th
Cir. 1983), that “findings made in preliminary injunction
decisions have preclusive effect ‘if the circumstances make it
likely that the findings are accurate [and] reliable.’” 126 F.3d at
474 n.11.
Such cases may be rare, but this is such a case. A central
issue in the District Court’s decision on the preliminary
injunction was whether Plaintiffs had a right to protest on the
ramp leading up to the entrance of the Facility. After holding an
evidentiary hearing, the District Court held that Plaintiffs had no
probability of success on the merits, that the ramp leading to the
Facility was a nonpublic forum, and that “it [was] entirely
reasonable for Officer Jay to instruct individuals not to stand or
congregate on the ramp, because their static presence on the
ramp necessarily conflicts with the ramp’s accessibility
requirements.” App. at 15-16. After reaching these conclusions,
the District Court noted that this decision effectively resolved
the issues on Defendants’ motion to dismiss.
As the issues on the two motions were exactly the same,
Plaintiffs had a full opportunity to present their arguments at the
hearing on the preliminary injunction - i.e., whether the ramp
leading to the Facility is a public forum, and there is no reason to
prolong the inquiry.
Plaintiffs argue that the District Court was required to
accept the statement in the complaint that the ramp at issue was a
public forum. We disagree. That allegation in the complaint
was a legal conclusion, which the District Court need not accept
in ruling on a motion to dismiss. As the Court stated in Iqbal,
“[T]he tenet that a court must accept as true all of the allegations
contained in a complaint is inapplicable to legal conclusions.”

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129 S. Ct. at 1949. Moreover, Plaintiffs’ complaint here
included attachments that depicted the ramp at issue and the
extent of ramp overlapping the public sidewalk. This permitted
the District Court to analogize to Kokinda, 497 U.S. at 727-28,
in holding that the portion of the ramp located on public property
was a nonpublic forum.
Plaintiffs’ allegations in the complaint of infringement of
their First Amendment rights are viable only if the ramp is a
public forum. The District Court’s finding that it is not, and our
affirmance of that finding, is supported by the documents
submitted with the complaint. If Plaintiffs were not excluded
from a public forum, they have failed “‘to state a [First
Amendment] claim to relief that is plausible on its face.’” Iqbal,
129 S. Ct. at 1949 (quoting Twombly, 550 U.S. at 570).
Photographs of the ramp in question were attached to the
complaint. Those photographs make plain that a protestor can
walk alongside the entire duration of the ramp, and thereby
converse with patients entering the clinic, while they
simultaneously demonstrate that the ramp allows only for
passage to and from the Facility. After Kokinda, there can be
little doubt that such a structure is a nonpublic forum. That
conclusion was reinforced by the testimony in the preliminary
injunction hearing that building handicapped ramps onto the
public sidewalk was routinely allowed in the City of York as
long as any encroachment was minimally intrusive, but that
testimony was not necessary to reach the conclusion that the
ramp at issue was a nonpublic forum. Moreover, Federal Rule
of Evidence 201(b)(2) authorizes the District Court to consider
the federal regulations governing handicapped access to
buildings as adjudicative facts, further supporting the conclusion
that the ramp at issue was a nonpublic forum.
The small entry ramp at issue here is unlike the alley in
McTernan, 564 F.3d 636, Holman, 564 F.3d 225, and Snell, 564
F.3d 659, where Plaintiffs alleged that they were treated
differently than other people seeking to use the alley. Here, the
presence of persons who seek to congregate on the ramp,
whether protestors or other, inherently impedes access to the

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clinic for any person attempting to use the handicapped ramp for
access to the building. There is no allegation in the complaint
that persons other than protestors are permitted to stand on the
ramp to interact with persons entering the Facility while the
protestors are not.
Plaintiffs also argue that prohibiting them from the ramp
violated their First Amendment right to the free exercise of
religion. Defendants do not dispute that Plaintiffs’ actions are
motivated by sincerely-held religious beliefs. However,
although the free exercise clause does protect religious
expression, it does not afford absolute protection. As we stated
in McTernan:
Where a law is “neutral and of general applicability[,]” it
“need not be justified by a compelling government
interest even if the law has the incidental effect of
burdening a particular religious practice.” Church of the
Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520,
531 (1993) (citing [Employment Div., Dep’t. of Human
Res. of Or. v.] Smith [494 U.S. 872,] 880 (1990)). If, on
the other hand, the government action is not neutral and
generally applicable, strict scrutiny applies, and the
government action violates the Free Exercise Clause
unless it is narrowly tailored to advance a compelling
government interest. Tenafly Eruv Ass’n, Inc. v. Borough
of Tenafly, 309 F.3d 144, 165 (3d Cir. 2002). Government
action is not neutral and generally applicable if it burdens
religious conduct because of its religious motivation, or if
it burdens religiously motivated conduct but exempts
substantial comparable conduct that is not religiously
motivated. See Hialeah, 508 U.S. at 543-46; Blackhawk v.
Pennsylvania, 381 F.3d 202, 209 (3d Cir. 2004).
McTernan, 564 F.3d at 647.
In the complaint, Plaintiffs do not allege that they are
treated differently than others, and instead claim only that
“Defendants’ actions target and are intended to chill, restrict, and
inhibit Plaintiffs from exercising their religion in this way” and
that “Defendants’ actions constituted a substantial burden on

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Even if the motion to dismiss were converted to a motion1
for summary judgment, affirmance would be appropriate. It was
at most harmless error to fail to notify the parties of the intended
conversion, Rose v. Bartle, 871 F.2d 331, 342 (3d Cir. 1989), as
dismissal would nevertheless have been proper. Given the legal
conclusions the District Court was permitted to draw at this stage
of the proceedings, the complaint failed to state sufficient facts to
proceed beyond this point.
18
Plaintiffs[’] religious exercise, and Defendants lacked a
compelling justification.” App. at 48. Once again, these are
merely conclusory allegations, and, as the Court stated in Iqbal,
“[t]hreadbare recitals of the elements of a cause of action,
supported by mere conclusory statements, do not suffice.” Iqbal,
129 S. Ct. at 1949 (citing Twombly, 550 U.S. at 555).1
IV.
Conclusion
For the reasons set forth we will affirm the District
Court’s orders denying Plaintiffs’ motion for a preliminary
injunction and dismissing the complaint.

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