Perdue v. City of Wilmington, DE et al
MEMORANDUM. Signed by Judge Sue L. Robinson on 10/08/2014. (mas)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
) Civ. Action No. 14-044-SLR
CITY OF WILMINGTON, DELAWARE, )
1. Introduction. Plaintiff David Perdue ("plaintiff') proceeds prose and has
been granted in forma pauperis status. Upon screening, the original complaint, filed
January 15, 2014, was dismissed and plaintiff was given leave to amend. Plaintiff filed
an amended complaint, but it did not contain a prayer for relief and it was also
dismissed. Plaintiff was again given leave to amend. (D.I. 11) Plaintiff recently filed a
prayer for relief. (D .I. 12) The court considers the amended complaint (D .I. 9) and the
amended complaint that contains the prayer for relief (D.I. 12), together, as the
2. Plaintiff alleges violations of: (1) the First, Fourth, and Fourteenth
Amendments to the United States Constitution; (2) the Fair Housing Act ("FHA"), 42
U.S.C. § 3601, et seq., and specifically§§ 3604, 3604(d), (f)(1), (f)(2), and (f)(3)(B), and
its regulations 24 C.F.R. §§100.60(b)(4) and (b)(5), § 100.65, §§100.70(a) through (c),
and (d)(5), and§§ 100.500(a) through (c); and (3) the Americans with Disabilities Act
("ADA"), 42 U.S.C. § 12101, et seq., and its regulations 28 C.F.R. § 35, 1 et seq., and
specifically 28 C.F.R. § 35.100, 2 and 28 C.F.R. §§ 35.134(a) and (b), all in relation to
condemnation of properties where he resided, as well as retaliation. (D. I. at 3-4; D. I.
3. Standard of Review. A federal court may properly dismiss an action sua
sponte under the screening provisions of 28 U.S.C. § 1915(e)(2)(8) and§ 1915A(b) if
"the action is frivolous or malicious, fails to state a claim upon which relief may be
granted, or seeks monetary relief from a defendant who is immune from such relief."
Ball v. Famiglio, 726 F.3d 448, 452 (3d Cir. 2013); see also 28 U.S.C. § 1915(e)(2).
The court must accept all factual allegations in a complaint as true and take them in the
light most favorable to a prose plaintiff. Phillips v. County of Allegheny, 515 F.3d 224,
229 (3d Cir. 2008); Erickson v. Pardus, 551 U.S. 89, 93 (2007). Because plaintiff
proceeds pro se, his pleading is liberally construed and his complaint, "however
inartfully pleaded, must be held to less stringent standards than formal pleadings
drafted by lawyers." Erickson v. Pardus, 551 U.S. at 94 (citations omitted).
4. An action is frivolous if it "lacks an arguable basis either in law or in fact."
Neitzke v. Williams, 490 U.S. 319, 325 (1989). Under 28 U.S.C. § 1915(e)(2)(B)(i), a
court may dismiss a complaint as frivolous if it is "based on an indisputably meritless
legal theory" or a "clearly baseless" or "fantastic or delusional" factual scenario.
The purpose of Part 35 part is to effectuate subtitle A of Title II of the ADA (42
U.S.C. 12131), which prohibits discrimination on the basis of disability by public entities.
28 C.F.R. § 35.101.
There is no such section. The Code of Federal Regulations Title 28, Chapter I,
Part 35 begins at 28 C.F.R. § 35.101.
Neitzke, 490 at 327-28; Wilson v. Rackmi/1, 878 F.2d 772, 774 (3d Cir. 1989); see, e.g.,
Deutsch v. United States, 67 F.3d 1080, 1091-92 (3d Cir. 1995).
5. The legal standard for dismissing a complaint for failure to state a claim
pursuant to§ 1915(e)(2)(B)(ii) is identical to the legal standard used when ruling on
Rule 12(b)(6) motions. Tourscherv. McCullough, 184 F.3d 236, 240 (3d Cir. 1999)
(applying Fed. R. Civ. P. 12(b)(6) standard to dismissal for failure to state a claim under
§ 1915(e)(2)(B)). However, before dismissing a complaint or claims for failure to state a
claim upon which relief may be granted pursuant to the screening provisions of 28
U.S.C. § 1915, the court must grant plaintiff leave to amend his complaint unless
amendment would be inequitable or futile. See Grayson v. Mayview State Hosp., 293
F.3d 103, 114 (3d Cir. 2002).
6. A well-pleaded complaint must contain more than mere labels and
conclusions. See Ashcroft v. Iqbal, 556 U.S. 662 (2009); Bell At/. Corp. v. Twombly,
550 U.S. 544 (2007). The assumption of truth is inapplicable to legal conclusions or to
"[t]hreadbare recitals of the elements of a cause of action supported by mere
conclusory statements." Iqbal, 556 U.S. at 678. When determining whether dismissal
is appropriate, the court must take three steps: "( 1) identify the elements of the claim,
(2) review the complaint to strike conclusory allegations, and then (3) look at the
well-pleaded components of the complaint and evaluat[e] whether all of the elements
identified in part one of the inquiry are sufficiently alleged." Malleus v. George, 641
F.3d 560, 563 (3d Cir. 2011 ). Elements are sufficiently alleged when the facts in the
complaint "show" that the plaintiff is entitled to relief. Iqbal, 556 U.S. at 679 (quoting
Fed. R. Civ. P. 8(a)(2)). Deciding whether a claim is plausible will be a "context-specific
task that requires the reviewing court to draw on its judicial experience and common
7. Allegations in the Amended Complaint. Plaintiff alleges that he is disabled
by reason of depression, substance abuse, bi-polar disorder and PTSD. He is an
associate of Disabled, Disadvantaged Delawareans also known as the 3D Foundation
("3D"), 3 and lived on properties owned by 3D located at 1028 West Third Street ("Third
Street house") and 1313 Maryland Ave. ("Maryland Avenue house"), both in
Wilmington, Delaware. Residents of the homes are not "blood-related" but consider
themselves family. Residents share expenses of the houses, including mortgage
payments, utility payments, taxes, and repairs. The home needs at least five to eight
residents who pay an agreed amount to make the home safe, affordable, and
supportive of recovery. (D. I. 9,
8. In 2011, defendant Jessica Ramos-Valesquez ("Ramos"), a City of
Wilmington 4 inspector/supervisor in the Department of Licenses and Inspections (L & I
Department), inspected the Third Street house, issued violations and posted an "unfit"
sign. Ramos did not return to re-inspect the premises to lift the unfit status despite
repeated requests from 3D. When plaintiff moved into the Third Street house in 2012,
the house remained in an "unfit" status. On an unnamed date, Ramos completed a
compliance inspection, acknowledged compliance for the existing violations, verbally
Russell (Scott) Walker ("Walker") founded 3D. (D. I. 9, ~ 8)
The City of Wilmington (City of Wilmington") is also a named defendant.
added new citations, and the Third Street house remained "unfit." Plaintiff alleges that
Ramos and City of Wilmington refused all requests to re-inspect the Third Street house
for compliance. The amended complaint alleges the foregoing violates 24 C.F.R.
§ 100.70(d)(5). (/d.
9. In March 2013, an individual living in another 3D home sued the City of
Wilmington for housing violations. Plaintiff alleges that two months later, on May 22,
2013, Ramos and defendant Anthony Goode (Goode"), the fire chief for the City of
Wilmington, and other City employees retaliated when they "raided" the Third Street
house. Goode telephoned Walker and indicated that he was shutting down the Third
Street house. Plaintiff alleges that Goode, Ramos, and other City workers entered the
Third Street house without a warrant or consent with the intent to evict the residents.
Goode indicated that he had received complaints (i.e., missing smoke detectors and a
blocked fire escape), 5 that the 3D houses would be shut down one-by-one, and that 3D
could not house disabled people at the Third Street house. The residents were
removed from the home and plywood was nailed over the front door. No one was
allowed to replace the smoke detectors or unblock the fire escape. Goode
subsequently proclaimed an emergency and ordered the electricity and gas shut off at
the Third Street house. Plaintiff alleges that the actions taken on May 23, 2013 denied
him housing because of his disability and his association with disabled persons, not
Goode indicated that a resident of the Third Street house had called and
complained there was a blocked fire escape and missing smoke detectors. Plaintiff
alleges that the complaints were made by a mentally ill person who was a "temporary,
non-paying shelter occupant of the home because she was homeless." Plaintiff further
alleges that the person was told to leave because she was engaging in criminal
activities and made the complaints in retaliation for her eviction. (/d. at~ 10)
because there was any imminent danger of fire. Plaintiff alleges that, since 2011, it has
been the City of Wilmington's intent to stop mentally disabled or mentally ill persons
from living in homes that are occupied by disabled persons and that it is clear through
City employees' words and actions that the City of Wilmington does not want mentally ill
or mentally disabled persons living in an arrangement like plaintiff's home. The
amended complaint alleges the foregoing violates 42 U.S.C. §§ 3601, 3604(d),
3604(f)(1)(A), (B), and (C) and (f)(2), and 12101,24 C.F.R. §§100.60 (4) and (5),
100.65, 100.70(a), (b), (c), and (d) (4) and (5), and the Fourth Amendment to the United
States Constitution. (/d. at 1J1l 8-14)
10. After being evicted from the Third Street house, plaintiff was temporarily
housed at the Maryland Avenue house. On May 27, 2013, Goode, firemen, and City
inspectors came to the house and Goode informed plaintiff he was shutting down the
house "for smoke detectors."6 Goode was wearing a firearm. Plaintiff alleges that
Goode demanded that he open the building for inspection, that the assistant fire chief
(not a named defendant) coerced him to leave the Maryland Avenue house, and that he
complied under duress. Inspector Anthony Rivera ("Rivera") wrote twenty-five code
violations. 7 At that time, Goode told plaintiff and others that he was going to shut down
all of the 30 houses and that he did not care if the residents were disabled or not. The
Piaintiff alleges that the same person who made the Third Street house
complaints, also complained that the Maryland Avenue house lacked smoke detectors.
(/d. at 1J15)
Rivera is not a defendant.
amended complaint alleges the foregoing violates 28 C.F.R. § 35.134(a) and (b) 8
through retaliation, threats, intimidation, and coercion, as well as the Fourth
Amendment to the United States Constitution. (/d. at 1J15)
11. The amended complaint next alleges that Ramos, through the zoning
director, demanded that either 3D or plaintiff obtain a business license to occupy
plaintiffs home (the amended complaint does not identify the particular property but it
appears it is the Third Street house). The type of City business license required
restricts the number of occupants in a dwelling to a family defined as no more than four
unrelated persons per dwelling. 9 In 2011, 3D made a request to Ramos for the City to
relax the occupancy rule as a reasonable accommodation for 3D's disabled residents.
Ramos told plaintiff that she would not inspect the house for compliance until a
business license was obtained. Plaintiffs home was cited for overcrowding for violating
the number of people allowed in a dwelling. Plaintiff alleges that no other owner of a
family home is required to obtain a City business license and that the requirement
unlawfully restricts housing choices because of a disability. The amended complaint
alleges that the foregoing violates 42 U.S.C. §§ 3601, 3604(f)(3)(8), 3605 and 1201; 24
C.F.R. §§ 100.500(a), (b), and (c), 100.70(d)(4) and (5), and the Fourteenth
Amendment to the United States Constitution. (/d. at 1J16-18)
A regulation that prohibits retaliation against individuals who exercise their rights
under the ADA.
As previously discussed, the home needs at leave five to eight residents for it to
be economically viable.
12. Plaintiff alleges that in 2013, the Wilmington City Council adopted a
moratorium on all group homes located in the city for the mentally handicapped. 10
Plaintiff alleges that this "singles out living arrangements for the disabled for negative
special treatment." The amended complaint alleges that the foregoing violates 42
U.S.C. §§ 3601, 12101, 24 C.F.R. §100, et seq., 11 and 28 C.F.R. § 35, et seq., as well
as plaintiff's rights to equal protection under the Fourteenth Amendment because the
moratorium's basis is "disability." (ld. at 1J19)
13. Plaintiff alleges that Ramos, the City of Wilmington, and defendant Jeffrey
Starkey ("Starkey"), at the time the Commissioner of the L & I Department, have a
practice or policy of "over-ticketing" for code violations after they receive a complaint
and gain entry to a home. Plaintiff alleges that his home was singled out for overticketing and that Ramos over-ticketed the house for trivial and unnecessary repairs to
force him or 3D to spend monies on repairs knowing that it would create an impossible
burden and result in the premises remaining in an "unfit" status or bankrupt the home
and force a Sheriff's sale. Plaintiff alleges that the policy is unnecessary and harms
handicapped persons who need affordable housing that is in short supply in
Wilmington. The amended complaint alleges that the foregoing violates 42 U.S.C.
Public records of the City of Wilmington indicate that on April 18, 2013, an
ordinance was passed by the City Counsel that urged "the Governor of the State of
Delaware and the Secretary of Health and Social Services to issue a six month
moratorium on funding any additional newly created non-profit group homes within the
City of Wilmington," and recommended "that a more stringent review process be
adopted for all existing group homes currently funded by the State of Delaware." See
Res. 13-032, as amended, City of Wilmington, Delaware (Apr. 18, 2013).
The Code of Federal Regulations Title 24, Subpart B., Chapter I, Subpart A,
Part 100 begins at 24 C.F.R. § 100.1.
§ 3601, et seq., and 24 C.F.R. §§ 100.70(d)(5) and 100.500(a), (b), and (c). (ld. at ,-r
14. The amended complaint alleges that Starkey and Goode worked together to
condemn and evacuate homes in Wilmington. Plaintiff alleges that Starkey is liable for
the actions of his subordinates and is responsible for training and supervising his
subordinates to make them aware of the protections afforded to minorities by the FHA.
The amended complaint alleges that the foregoing violates 42 U.S. C. § 3601, et seq.,
24 C.F.R. § 100 et seq., and 28 C.F.R. § 35 et seq. (!d. at ,-r 21)
15. Plaintiff filed a housing discrimination complaint, based on disability, with the
State of Delaware Human Relations Commission. Defendant Director Ramona Fullman
("Fullman") dismissed the complaint on the grounds that plaintiff failed to cite a statute.
Fullman would not return plaintiff's telephone calls when he asked for an explanation for
the dismissal. Plaintiff alleges that Fullman does not investigate fair housing complaints
when based upon a mental disability. Plaintiff alleges that Fullman denied his right to
access the courts in violation of the First Amendment and that she violated his
Fourteenth Amendment right to equal protection when she rejected the complaint
because of his mental disability. The amended complaint further alleges that Fullman
denied plaintiff services because of a mental disability in violation of 42 U.S.C. § 12101,
et seq. and 28 C.F.R. 35.100, et seq. (!d. at ,-r 22) Finally, plaintiff alleges that all
defendants have denied his rights under the First Amendment to free association. (!d.
at ,-r 23) Plaintiff seeks compensatory damages. (D. I. 12)
16. Discussion. The complaint contains numerous claims. Plaintiff's claims for
violations of the First, Fourth, and Fourteenth Amendments are civil rights claims.
Although plaintiff does not mention the statute, civil rights claims are typically raised
pursuant to 42 U.S.C. § 1983. 12 He also raises claims under the Title II of the ADA, and
17. Statute of Limitations. Plaintiff filed the original complaint on January 15,
2014. The amended complaint complains of actions taken as far back as 2011. For
purposes of the statute of limitations, § 1983 claims are characterized as personal
injury actions. Wilson v. Garcia, 471 U.S. 261, 275 (1983). In addition, "the statute of
limitations applicable to claims under Title II of the ADA ... is the statute of limitations
for personal injury actions in the state in which the trial court sits." Disabled in Action v.
SEPTA, 539 F.3d 199, 208 (3d Cir. 2008). In Delaware,§ 1983 claims are subject to a
two-year limitations period. See 10 Del. C.§ 8119; Johnson v. Cullen, 925 F. Supp.
244, 248 (D. Del. 1996). Similarly, the FHA expressly sets forth a two-year statute of
limitations. Braun v. Gonzales, 557 F. App'x 176, 179 (3d Cir. 2014) (unpublished)
(quoting 42 U.S.C. § 3613(a)(1)(A) ("An aggrieved person may commence a civil action
... not later than 2 years after the occurrence ... of an alleged discriminatory housing
practice .... "). Accordingly, as is apparent from the face of the amended complaint, all
claims raised prior to January 15, 2012 are time-barred and, therefore, will be
dismissed as legally frivolous pursuant to 28 U.S.C. § 1915(e)(2)(B)(i). See Davis v.
Gauby, 408 F. App'x 524, 526 (3d Cir. 201 0) (unpublished) (quoting Fogle v. Pierson,
435 F.3d 1252, 1258 (101h Cir. 2006)) ("[W]here the statute of limitations defense is
When bringing a § 1983 claim, a plaintiff must allege that some person has
deprived him of a federal right, and that the person who caused the deprivation acted
under color of state law. West v. Atkins, 487 U.S. 42, 48 (1988).
obvious from the face of the complaint and no development of the factual record is
required to determine whether dismissal is appropriate, sua sponte dismissal under 28
U.S.C. § 1915 is permissible."
18. Quasi-Judicial Immunity. Plaintiff alleges that he was denied his right to
access the courts in violation of the First Amendment because his housing
discrimination complaint was dismissed and Fullman would not return his telephone
calls to explain the dismissal. He further alleges that Fullman violated his right to equal
protection under the Fourteenth Amendment and the ADA when she rejected his
complaint because of his mental disability. (D.I. 9, ~ 22) Fullman is the Director of the
Delaware Division of Human Relations and the State Human Relations Commission
("Commission"). See http://statehumanrelations.delaware.gov/director.shtml (Sept. 30,
2014). The Commission is a quasi-judicial agency which rendered a decision on
plaintiff's housing discrimination complaint. See Lindsay v. Beaver Brook Section One
Inc., 322 A.2d 13 (Del. 1974).
19. Fullman is immune from suit by reason of quasi-judicial immunity. Judicial
immunity is afforded to individuals who perform ministerial duties of a judicial nature
pursuant to a statute, see Smith v. Rosenbaum, 460 F.2d 1019 (3d Cir. 1972); accord
Scott v. Dixon, 720 F.2d 1542 (11th Cir. 1983), or who perform acts which are judicial in
nature and integral to the judicial process. See Waits v. McGowan, 516 F.2d 203, 20506 (1975); Rosenbaum, 460 F.2d at 1020; Robinson v. McCorkle, 462 F.2d 111, 113
(3d Cir. 1972). Fullman has judicial immunity as the alleged actions taken by her were
plainly integral to the judicial process. Accordingly, the claims against her will be
dismissed as she is immune from suit pursuant to 28 U.S.C. § 1915(e)(2)(8)(iii).
20. Free Association. The amended complaint alleges that, "all defendants
denied plaintiff his First Amendment rights of free association." (D.I. 9, 1]23) "The First
Amendment protects only the right to associate for the purpose of engaging in activities
protected by the First Amendment--speech, assembly, the right to petition, and free
exercise of religion." Dotzel v. Ashbridge, 306 F. App'x 798, 802 (3d Cir. 2009)
(unpublished) (citing Roberts v. United States Jaycees, 468 U.S. 609, 618 (1984)).
Plaintiff's claim fails to the extent that he alleges the limitation of the number of people
allowed to dwell in one household violates his right to freedom of association. See Doe
v. City of Butler, Pa., 892 F.2d 315, 322 (3d Cir. 1989) (zoning regulation which limited
transitional dwellings to six persons and supervisory family or person did not violate
First Amendment right to freedom of association). Therefore, the court will dismiss the
free association claim as frivolous pursuant to 28 U.S.C. § 1915(e)(2)(B)(i).
21. Equal Protection.
Plaintiff alleges that Ramos, the City of Wilmington, and
Starkey violated his right to equal protection under the Fourteenth Amendment when
they required either 3D or plaintiff to obtain a business license for occupancy of a multiperson house. Plaintiff alleges that he is a associate of 3D, who owns the house. 3D
had asked the City to relax the occupancy rule as a reasonable accommodation to 3D's
disabled residents. Plaintiff alleges that no other owner of a family home is required to
obtain a business license and that this requirement violates the Fourteenth
Amendment. The claim fails for plaintiff's lack of standing.
22. "The 'core component'" of the requirement that a litigant have standing to
invoke the authority of a federal court "is an essential and unchanging part of the caseor-controversy requirement of Article Ill." DaimlerChrysler Corp. v. Cuno, 547 U.S. 332,
343 (2006) (citations omitted). "A plaintiff must allege personal injury fairly traceable to
the defendant's allegedly unlawful conduct and likely to be redressed by the requested
relief." Allen v. Wright, 468 U.S. 737, 751 (1984). Also, "a plaintiff must demonstrate
standing separately for each form of relief sought." Daim/erChrysler Corp., 547 U.S. at
352 (citations omitted).
23. The Third Circuit determines the appropriateness of third-party standing with
a three part test. Nasir v. Morgan, 350 F.3d 366, 376 (3d Cir. 2003) (citations omitted).
"To successfully assert third-party standing: (1) the plaintiff must suffer injury; (2) the
plaintiff and the third party must have a 'close relationship'; and (3) the third party must
face some obstacles that prevent it from pursuing its own claims." /d. Here, plaintiff
alleges an injury in that he was not allowed to occupy a home due to the business
license requirement and he alleges a close relationship with 3D, as its associate.
However, the amended complaint fails to allege that 3D faced some obstacle to
pursuing its own claims. The claim is frivolous and, therefore, will be dismissed
pursuant to 28 U.S.C. § 1915(e)(2)(B)(i).
24. Americans with Disabilities Act. The court liberally construes the
amended complaint and finds that plaintiff has adequately alleged violations of Title II of
the ADA against the City of Wilmington for failure to accommodate his alleged disability.
Title II of the ADA provides that "no qualified individual with a disability shall, by reason
of such disability, be excluded from participation in or be denied the benefits of the
services, programs, or activities of a public entity, or be subjected to discrimination by
any such entity." 42 U.S.C. § 12132. However, the Title II ADA claim fails to the extent
plaintiff attempts to impose liability for damages upon the individual defendants
because they are not "public entities" within the meaning of the ADA. See Emerson v.
Thiel Col/., 296 F.3d 184, 189 (3d Cir. 2002); see also Glenn v. McGrady, 2014 WL
939507, at *5 (M.D. Pa. 2014) (the proper defendant in a Title II claim is the public
entity or an official acting in his official capacity). Plaintiff is unable to state a Title II
ADA claim against defendants in their individual capacities and, therefore, the court will
dismiss such claims as legally frivolous pursuant to 28 U.S.C. § 1915(e)(2)(8)(i).
25. Retaliation. Plaintiff alleges Ramos, Goode, and others retaliated against
him as a result of a lawsuit filed by someone else against the City of Wilmington for
housing violations. The alleged retaliation occurred when the Third Street house was
raided on May 22, 2013 and when the Maryland Avenue house was inspected and shut
down on May 27, 2013. Plaintiff cannot state a retaliation claim based upon his
relationship with 3D and lawsuits filed by other individuals. The Third Circuit Court of
Appeals has held that third-party retaliation is not actionable. That is, one cannot claim
that he was retaliated against because a friend or relative engaged in protected activity.
Fogelman v. Mercy Hosp., Inc., 283 F.3d 561, 570 (3d Cir. 2002). All retaliation claims
are legally frivolous and, therefore, will be dismissed pursuant to 28 U.S.C.
26. Conclusion. For the above reasons, the court will dismiss: (1) all claims for
acts taking place prior to January 15, 2012 as time-barred and as legally frivolous
pursuant to 28 U.S.C. § 1915(e)(2)(B)(i); (2) all claims against defendant Ramona
Fullman pursuant to 28 U.S.C. § 1915(e)(2)(8)(iii) as she is immune from suit; (3) the
First Amendment free association claim, Fourteenth Amendment due process claim,
and retaliation claims as frivolous pursuant to 28 U.S.C. § 1915(e)(2)(8)(i); and (4) the
and (4) the Title II ADA claims against the individual defendants as frivolous pursuant to
28 U.S.C. § 1915(e)(2)(B)(i).
27. The court will allow plaintiff to proceed with: (1) Fourth Amendment claims
of unreasonable search and seizure against defendants Anthony Goode and Jessica
Ramos-Valesquez; (2) Fair Housing Act claims against defendants Jessica RamosValesquez, the City of Wilmington, and Jeffrey Starkey; (3) selective enforcement
claims against Jessica Ramos-Valesquez, Anthony Goode, the City of Wilmington, and
Jeffrey Starkey; and (4) Title II ADA claim against the City of Wilmington. A separate
order shall issue.
B , 2014
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