REED v. SCHEFFLER et al

Filing 70

OPINION. Signed by Judge Noel L. Hillman on 4/27/2018. (tf, )

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

WILLIAM A. REED, JR.
as personal representative
for ELSIE M. REED, an
incompetent individual, and
WILLIAM A. REED, JR.,
individually,

1:16-cv-00423-NLH-AMD
OPINION

Plaintiff,
v.
KAREN SCHEFFLER,
Mayor of the Borough of
Palmyra, TRACY KILMER
Housing Official, Borough of
Palmyra, BOROUGH OF PALMYRA,
Defendants.

APPEARANCES:
PETER M. KOBER
1864 ROUTE 70 EAST
CHERRY HILL, NJ 08003
On behalf of Plaintiff
RICHARD L. GOLDSTEIN
ASHLEY L. TOTH
MARSHALL, DENNEHEY, WARNER, COLEMAN & GOGGIN, PA
WOODLAND FALLS CORPORATE PARK
200 LAKE DRIVE EAST
SUITE 300
CHERRY HILL, NJ 08002
BETSY G. RAMOS
VORIS M. TEJADA, JR.
CAPEHART & SCATCHARD
LAUREL CORPORATE CENTER
8000 MIDLANTIC DRIVE - C.S. 5016
SUITE 300
MOUNT LAUREL, NJ 08054
On behalf of Defendants

HILLMAN, District Judge
This matter concerns constitutional claims arising out of
the enforcement of a municipal ordinance governing the
inspection of, and issuance of certificates of occupancy
(“CO”) for, residential properties.

Pending before the Court

is the motion of Defendants for summary judgment on all of
Plaintiff’s claims, as well as Plaintiff’s motion for leave to
file an amended complaint.

For the reasons expressed below,

Defendants’ motion will be granted, and Plaintiff’s motion
will be denied.
BACKGROUND
Plaintiff, William A. Reed, Jr., held powers of attorney
over the affairs of his mother, Elsie M. Reed, who owned a
home at 28 Pear Street in Palmyra, New Jersey.
in the home until July 2012.

Ms. Reed lived

In early 2013, Plaintiff wished

to sell the house in “as is” condition.

The tax assessed

value of the property as of January 7, 2013 was $134,900.
In February 2014, Plaintiff found a buyer who was in the
home remodeling business, and after several inspections of the
property, offered plaintiff $95,000.

By the end of February

2014, the buyer had secured a mortgage and the parties were
ready to close on the property no later than April 1, 2014
because time was of the essence for the buyer.

2

On February 27, 2014, Plaintiff sent an email to
defendant Tracy Kilmer, who is the Borough’s housing official,
to inquire about the Borough’s ordinance requiring a home
owner to obtain a CO from the Borough prior to the sale of a
home.

Kilmer replied to Plaintiff’s email and informed him

that such an ordinance was in effect and Plaintiff was
required to obtain a CO.

Kilmer performed an inspection of

the property on March 10, 2014 and found 33 code violations.
Plaintiff was initially afforded until April 30, 2014 to
correct the code violations, but at Plaintiff’s request for an
extension Kilmer provided Plaintiff with as much time as he
needed to make the repairs.
Plaintiff claims that even though the buyer still wished
to purchase the property after the March 10, 2014 inspection
report, the parties could not go through with the sale by the
April 1, 2014 closing date without a CO.
fell through.

Ultimately, the sale

By September 2014, Plaintiff, after “great

hardship and expense,” fixed the code violations.

On

September 16, 2014, Kilmer re-inspected the property and
issued a CO to Plaintiff.

On December 15, 2014, the property

sold to a different buyer for $115,000.
Although as discussed below he makes other arguments,
Plaintiff’s primary assertion is that Kilmer and the Borough
violated his substantive due process rights when they required
3

him to comply with the CO Ordinance in February 2014, even
though he claims that the effective date of that Ordinance was
on hold until April 1, 2014, as set forth on the Borough’s
webpage. 1
Defendants have moved for summary judgment in their
favor.

They argue that: (1) Plaintiff lacks standing to

assert his substantive due process claim because he was not
the owner of the property when the alleged unconstitutional
conduct occurred; (2) the Ordinance requiring a CO prior to
sale was in effect as of February 1, 2014 and therefore in
effect at the time Plaintiff contacted Kilmer and she
performed the inspection; (3) because the Ordinance was in
effect and is otherwise lawful, their conduct cannot be held
to “shock the conscience”; and (4) Plaintiff ultimately sold
the house for $20,000 more than the original buyer had offered
Plaintiff. 2

1

As discussed below, the original Ordinance requiring a CO
before a residence could be resold and occupied was Ordinance
2013-17 introduced on May 20, 2013 and adopted on June 17,
2013. It appears that before that date, homeowners were free
to buy and sell homes even if they could not be legally
occupied under local standards. Ordinance 2013-25, adopted on
August 19, 2013, amended portions of Ordinance 2013-17
effective as of October 1, 2013. Ordinance 2013-28, adopted
on November 4, 2013, which further amended the original
Ordinance 2013-17, became effective on February 1, 2014.
2

Defendants have also moved for judgment in their favor on
Plaintiff’s claims under the “takings clause” and for
“selective enforcement.” Plaintiff has conceded the entry of
judgment in Defendants’ favor on those claims.
4

In response, Plaintiff argues that: (1) he has standing
to assert his due process claims as he held a power of
attorney from his incapacitated mother; 3 (2) the Ordinance was
not in effect as shown by the Borough’s website, which
provides that after the request of the mayor to hold off on
its implementation, the Ordinance became effective as of April
1, 2014; (3) if the Ordinance was in effect on the date of the
proposed sale, Kilmer never informed him that he could have
obtained a temporary certificate of occupancy, which would
have saved the sale with the original buyer; 4 and (4) if the
Ordinance was in effect on the date of the proposed sale,
Kilmer failed to accurately describe the Ordinance which as of
at least October 1, 2013 merely required a CO before reoccupancy not as a pre-condition to a sale.
In conjunction with his opposition to Defendants’ motion,
Plaintiff has filed a motion to file an amended complaint.
Plaintiff seeks to add as a new defendant the Borough’s
administrator, John Gural, who was the author of the Borough’s

3

Plaintiff’s mother is now deceased.

4

As discussed below, the allegation that Kilmer never informed
Plaintiff of the option of a temporary CO is not included in
his current complaint, nor is the assertion that Kilmer misled
Plaintiff when she stated that a CO was required prior to the
sale of his home even though the version of the Ordinance in
effect permitted the sale of a home without a CO so long as
the new buyer obtained a CO before re-occupancy. In light of
Plaintiff’s motion to amend, the Court addresses these
arguments nonetheless.
5

website.
case. 5

Plaintiff also seeks to add the mayor back into the

Plaintiff further seeks to assert claims against the

Borough under Monell v. Dept. of Social Services of City of
New York, 436 U.S. 658, 694 (1978).
Defendants have opposed Plaintiff’s motion, arguing that
not only are Plaintiff’s proposed amendments futile, they are
inequitable because Plaintiff has been aware of Gural since
the inception of the case, or at least by the end of
discovery, which concluded on June 30, 2016, and Plaintiff’s
third attempt to assert claims against Scheffler are as
unavailing as the first two.
DISCUSSION
A.

Subject matter jurisdiction

Plaintiff has brought his claims pursuant to 42 U.S.C. §
1983, 6 as well as the New Jersey constitution and New Jersey

5

In his original complaint, Plaintiff asserted claims against
the Borough’s mayor, Karen Scheffler, for free speech
violations and defamation/false light. The Court granted
Scheffler’s motion to dismiss (Docket No. 23), denied
Plaintiff’s motion for reconsideration (Docket No. 37), and
denied Plaintiff’s motion to amend his complaint in an attempt
to revive his claims against Scheffler (Docket No. 65). In
his proposed amended complaint, Plaintiff claims that Gural,
Scheffler, and Kilmer are policymakers for the Borough, and
once again claims that Scheffler violated his First Amendment
rights.
6

42 U.S.C. § 1983, which provides in pertinent part:
Every person who, under color of any statute, ordinance,
regulation, custom, or usage, of any State or Territory,
6

state law.

This Court has jurisdiction over Plaintiff’s

federal claims under 28 U.S.C. § 1331, and supplemental
jurisdiction over Plaintiff’s state law claims under 28 U.S.C.
§ 1367.
B.

Standard for Motion for Summary Judgment

Summary judgment is appropriate where the Court is
satisfied that the materials in the record, including
depositions, documents, electronically stored information,
affidavits or declarations, stipulations, admissions, or
interrogatory answers, demonstrate that there is no genuine
issue as to any material fact and that the moving party is
entitled to a judgment as a matter of law.

Celotex Corp. v.

Catrett, 477 U.S. 317, 330 (1986); Fed. R. Civ. P. 56(a).
An issue is “genuine” if it is supported by evidence such
that a reasonable jury could return a verdict in the nonmoving

subjects, or causes to be subjected, any citizen of the
United States or other person within the jurisdiction
thereof to the deprivation of any rights, privileges, or
immunities secured by the Constitution and laws, shall be
liable to the party injured in an action at law, suit in
equity, or other proper proceeding for redress.
“By its terms, of course, the statute creates no substantive
rights; it merely provides remedies for deprivations of rights
established elsewhere.” City of Oklahoma City v. Tuttle, 471
U.S. 808, 816 (1985). Thus, “[t]o establish a claim under 42
U.S.C. § 1983, [a plaintiff] must demonstrate a violation of a
right secured by the Constitution and the laws of the United
States [and] that the alleged deprivation was committed by a
person acting under color of state law.” Moore v. Tartler,
986 F.2d 682, 685 (3d Cir. 1993).
7

party’s favor.
248 (1986).

Anderson v. Liberty Lobby, Inc., 477 U.S. 242,

A fact is “material” if, under the governing

substantive law, a dispute about the fact might affect the
outcome of the suit.

Id.

In considering a motion for summary

judgment, a district court may not make credibility
determinations or engage in any weighing of the evidence;
instead, the non-moving party's evidence “is to be believed
and all justifiable inferences are to be drawn in his favor.”
Marino v. Industrial Crating Co., 358 F.3d 241, 247 (3d Cir.
2004)(quoting Anderson, 477 U.S. at 255).
Initially, the moving party has the burden of
demonstrating the absence of a genuine issue of material fact.
Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).

Once the

moving party has met this burden, the nonmoving party must
identify, by affidavits or otherwise, specific facts showing
that there is a genuine issue for trial.

Id.

Thus, to

withstand a properly supported motion for summary judgment,
the nonmoving party must identify specific facts and
affirmative evidence that contradict those offered by the
moving party.

Anderson, 477 U.S. at 256-57.

A party opposing

summary judgment must do more than just rest upon mere
allegations, general denials, or vague statements.
Kmart Corp., 260 F.3d 228, 232 (3d Cir. 2001).

8

Saldana v.

C.

Analysis
1.

Defendants’ motion for summary judgment

Plaintiff claims that Defendants’ enforcement of the CO
Ordinance deprived him of a property interest when he lost the
original buyer of his mother’s house and was forced to foot
the cost of repairs, upkeep, and property taxes until he found
a new buyer.

Plaintiff argues he would not have been deprived

of that property interest if Defendants had not improperly
enforced the Ordinance, which was not in effect at the time,
as reflected by the Borough’s webpage.
Plaintiff, by way of his proposed amended complaint, also
argues as an apparent alternative theory of liability, that
Kilmer’s failure to apprise him of the option of a temporary
CO, expressly permitted in the challenged ordinance, deprived
him of a property interest.

Lastly, Plaintiff argues that

Kilmer informed him that a CO was required prior to the sale
of his home even though the version of the Ordinance the
Borough asserts was in effect at the time he contacted her
permitted the sale of a home without a CO so long as the new
buyer did not occupy the structure before a CO was obtained.
Defendants counter that the April 1, 2014 effective date
on the website was a typographical error.

Defendants further

argue that regardless of what the webpage said, the actual
effective date of Ordinance 2013-28, which was an amendment to
9

the original Ordinance 2013-17, was February 1, 2014, and its
effective date had never been placed on hold, despite the
mayor’s purported wish that it should be.

Defendants also

point out that regardless of the effective date of Ordinance
2013-28, the requirement for a CO had been in existence since
the original Ordinance 2013-17, which became effective June
17, 2013.

With regard to the temporary CO, to the extent that

such a claim is actually in the case, Defendants argue that
Plaintiff never inquired about a temporary CO, and Kilmer did
not have any obligation to inform him about a temporary CO.
Defendants also argue that Plaintiff has not provided any
proof that an issuance of a temporary CO would have saved the
sale to the original buyer.
Before turning to the merits, the Court must first
address Defendants’ argument that Plaintiff lacks standing.
a. Whether Plaintiff has standing
To establish standing, a plaintiff must show: “(1) an
‘injury in fact,’ i.e., an actual or imminently threatened
injury that is ‘concrete and particularized’ to the plaintiff;
(2) causation, i.e., traceability of the injury to the actions
of the defendant; and (3) redressability of the injury by a
favorable decision by the Court.”

National Collegiate

Athletic Ass'n v. Governor of New Jersey, 730 F.3d 208, 218–19
(3d Cir. 2013) (citing Summers v. Earth Island Inst., 555 U.S.
10

488, 493 (2009)).

The contours of the injury-in-fact

requirement, although “not precisely defined, are very
generous.”

Id. (citation omitted).

“Indeed, all that Article

III requires is an identifiable trifle of injury, which may
exist if the plaintiff has a personal stake in the outcome of
[the] litigation.”

Id. (citing Lujan v. Defenders of

Wildlife, 504 U.S. 555, 560 n.l (1992) (noting that to satisfy
the injury-in-fact requirement the “injury must affect the
plaintiff in a personal and individual way”)) (other citation
omitted).
The injury sufficient to confer standing is particularly
relaxed where the allegation asserts a violation of a
constitutional right.

As the Supreme Court recently noted,

there is a well-established historical distinction between
efforts to vindicate a public right, for example a violation
of a regulatory statute, and a private right such as a
constitutional tort.
1540, 1551 (2016).

See Spokeo, Inc. v. Robins, 136 S. Ct.
The latter requires a heightened showing

of standing in order to avoid entangling the courts in policy
disputes or to enlist the courts in the enforcement of
statutes where a private right of action is unclear and the
harm hypothetical.

Such disputes are not cases or

controversies with the meaning of Article III and are best
left to the discretion of the relevant executive branch
11

agencies that administer and enforce regulatory statutes.
In contrast, a plaintiff alleging a violation of a
private right need only meet a lessened measure of standing.
This is because violations of certain private rights are
actionable even in the absence of actual damages, where the
harm is intangible such as defamation, or where damages are
difficult to calculate.

See Spokeo, 136 S. Ct. at 1551 (“In a

suit for the violation of a private right, courts historically
presumed that the plaintiff suffered a de facto injury merely
from having his personal, legal rights invaded. . . .

Many

traditional remedies for private-rights causes of action . . .
are not contingent on a plaintiff’s allegation of damages
beyond the violation of his private legal right.”).

As

Justice Thomas noted in his concurrence in Spokeo, one of the
clearest examples of this is an allegation of a violation of a
constitutional right where a demonstrated violation warrants
an award of nominal damages even in the absence of actual
damages.

Spokeo, 136 S. Ct. at 1552 (Thomas, J., concurring).

The absence of economic harm should not shield a government
official who violates his oath and breaches the duty he owes
to a citizen to act according to the Constitution.
Plaintiff in this case has asserted a violation of a
private right and the economic injury he alleges stemming from
enforcement of the challenged Ordinances is sufficient to
12

confer standing to pursue substantive due process claims
against Defendants.

The Ordinances provide that they apply to

an “Owner” of a residential property.

The original Ordinance

2013-17 requires a written application for a certificate of
occupancy “by owner or his/her agent” prior to any sale of a
residence.

(Docket No. 47-2 at 6.)

The definition of “Owner”

is: “The person who owns, purports to own or exercises control
over any residential property.”

(Id.)

Defendants do not

dispute that Plaintiff exercised control over his
incapacitated mother’s home, and that he has claimed an injury
relating to that status.

Thus, by the very definition of

“owner” in the Ordinances at issue, Plaintiff has a personal
stake in his mother’s house and an interest in not having his
substantive due process rights violated. 7
Defendants argue that also fatal to Plaintiff’s standing
is his inability to establish any injury.

Plaintiff alleges

that he suffered monetary damages for the cost of repairs,
maintenance, and property taxes he would not have incurred but
for Defendants’ constitutionally impermissible application of
the CO Ordinances which caused the sale to fall through with
the original buyer.

Plaintiff further alleges damages for

7

The Court notes that the Plaintiff brings his claims both in
his own name and as the personal representative of his mother
who was incompetent at the time this action was instituted.
13

blood pressure elevation, weariness, loss of sleep, anxiety,
depression, emotional distress, mental anguish, and diminution
in the quality of time spent with his mother due to trying to
pretend all was well with her home.

Defendants counter that

Plaintiff’s professed damages are unsupported, and even
accepting Plaintiff’s calculation of his expenditures, at most
Plaintiff suffered is a de minimus loss of $815 when
subtracting his expenditures with the $20,000 increased sale
price over the original buyer’s offer.
As Justice Thomas observed in Spokeo, the viability of
action to vindicate a private right, such as Plaintiff’s
claims here, are not contingent upon the establishment of
damages beyond the alleged violation itself.

Defendants’

arguments about Plaintiff’s lack of damages miss the mark with
regard to the standing issue. 8

Thus, it is clear that

Plaintiff has standing, both in his personal and
representative capacity, to bring his constitutional claims
against Defendants.
b.

Plaintiff’s due process claims

The next issue to be addressed is one of law.

Before

turning to the substance of Plaintiff’s due process claims,

8

Ultimately, however, the extent of Plaintiff’s damages is a
moot issue since Plaintiff’s constitutional claims are
unavailing.
14

the Court must first determine what law was in effect at the
time Plaintiff contacted Kilmer, and then determine whether
Plaintiff has presented sufficient issues of material fact to
withstand Defendants’ summary judgment motion.

i.

What law was in effect on when Plaintiff
contacted Kilmer on February 27, 2014

Prior to June 17, 2013, the Borough of Palmyra did not
require a homeowner to obtain an inspection and a certificate
of occupancy from the Borough when an owner wished to sell his
or her home.

The original Ordinance requiring a CO before a

residence could be resold and occupied was Ordinance 2013-17
introduced on May 20, 2013 and adopted on June 17, 2013.

This

Ordinance required that a residence could not be sold until a
CO was first obtained from the Housing Department.
No. 47-2 at 6.)

(Docket

The Ordinance also provided that the Housing

Department “may issue a temporary certificate of occupancy in
appropriate cases and may, in such instances, grant up to 90
days to correct violations . . . .”

(Id. at 7.)

That Ordinance was amended by Ordinance 2013-25, with an
effective date of October 1, 2013. 9

Relevant to the case here,

section 3C of Ordinance 2013-17 was amended to provide:

9

Ordinance 2013-25 was introduced on August 5, 2013, and
opened for public comment on August 19, 2013. (Docket No. 474.)
15

“Although a residence may be sold without the issuance of a
certificate of occupancy or a temporary certification of
occupancy, the residence may not be occupied for residential
purposes prior to the issuance of the certificate of occupancy
or a temporary certificate of occupancy.”

(Docket No. 47-4 at

5-6.)
Ordinance 2013-28 further amended the original Ordinance
2013-17, and incorporated the amendments of Ordinance 2013-25.
This Ordinance, adopted on November 4, 2013, became effective
as of February 1, 2014.

(Docket No. 47-5 at 5 and 6.)

The

only change in Ordinance 2013-28 relevant to this case relates
to temporary COs.

Ordinance 2013-28 deleted the first

sentence of section 4 in Ordinance 2013-17 and replaced it
with two new sentences which provide that the Housing
Department “may issue” a temporary CO “in appropriate cases
provided that the owner presents a corrective plan to rectify
the violations within a reasonable period,” and the temporary
CO “may be issued for 90 days, and may be extended up to 90
days if progress is shown . . . .”

(Docket No. 47-5 at 5.)

Plaintiff argues that none of these Ordinances were in
effect when he contacted Kilmer on February 27, 2014 because
they were “on hold” at the request of the mayor.

He bases his

argument on the Borough’s website, which provided: “Attention
Homeowners: thinking of selling your home?
16

Effective April 1,

2014, Certificate of Occupancy inspections (on existing home
re-sales) are now required.” 10

(Docket No. 55-11 at 2-4.)

The

website then related the history of Ordinance 2013-17, but
stated:
On Thursday, September 12th however, Mayor Karen
Scheffler met with noted local REALTOR® and then-PHCA
Board member Joan Byrem, along with several other local
Real Estate agents and other professionals. As a result
of this meeting Mayor Scheffler requested that CO
inspections be postponed until recommendations proposed
by Ms. Byrem can be adopted. This ordinance was on hold
but is now being enforced, effective April 1, 2014.
(Id. at 3.)
Defendants argue that the April 1, 2014 date was a
typographical error, and February 1, 2014 was the correct
date.

Defendants further argue that even though the mayor

requested the CO inspections be delayed, any adoption or
amendment of an Ordinance would have required a public
hearing, a vote by the Borough’s governing body, and
publication in the newspaper.

The mayor is not a part of the

adoption or amendment process, and the mayor’s request to
delay the enforcement of the CO Ordinances was never subject
to that procedure, and they were therefore never put “on
hold.”

10

It is not clear from the record when the information on the
webpage was posted, but the statement “Effective April 1,
2014,” CO inspections “are now required” suggests it was
posted after April 1, 2014.
17

The Court finds as a matter of law that Ordinance 2013-17
and its amendments were in effect as of February 27, 2014, the
date Plaintiff contacted Kilmer regarding his proposed sale.
It is undisputed that the original Ordinance 2013-17 was in
effect on June 17, 2013, and amended twice with effective
dates of October 1, 2013 (Ordinance 2013-25) and February 1,
2014 (Ordinance 2013-28).

Plaintiff has also failed to show

how a webpage post, presumptively posted after April 1, 2014,
would serve to override the formal process of the Borough’s
governing body in enacting ordinances, including publishing
the proposed ordinances in the newspaper and seeking public
comment prior to the ordinances taking effect. 11

Plaintiff

admits that no formalities regarding the mayor’s suspensionof-inspections request were undertaken by the Borough.

(Pl’s

Responsive Statement of Undisputed Material Facts, Docket No.
55-1 at 6, ¶ 38.)
The best evidence that the Ordinance and its amendment
were in place is that the parties in this case and the Borough

11

Plaintiff discovered the website posting in February or
March 2015 - well after his February 27, 2014 email to Kilmer,
the repairs, and issuance of the CO in September 16, 2014.
This case is not one where Plaintiff relied upon the website
for the Ordinance’s effective date and failed to obtain a CO
prior to the sale of his mother’s house, and was then held
liable for a violation of the Ordinance. That fact pattern
would present a very different case with regard to the
webpage’s role in any due process violation.
18

in general acted in conformity with them.

Plaintiff has not

presented any evidence that at some time between the June 17,
2013 effective date of Ordinance 2013-17 and the website
posting (a period that encompasses the time Plaintiff sought
to sell his mother’s home), the Borough stopped conducting CO
inspections according to the Ordinance at the request of the
mayor and local realtors.
Indeed, the undisputed facts are to the contrary.
Plaintiff’s own experience shows that the Ordinances were in
effect and enforced during the relevant time period.

On

February 27, 2014, Plaintiff contacted the Borough to
determine whether an inspection and the issuance of a CO were
required in order to sell his mother’s house, and he was told
it was. 12

Plaintiff has provided no evidence that he was the

only owner of a residential property to whom the Borough
applied the CO requirement after the date it was purportedly
placed “on hold.”

To the contrary, Plaintiff has not refuted

Defendants’ evidence that lists the other 18 inspections
performed during this period.

(See Docket No. 47-19 at 2-3.)

Thus, the unrefuted evidence shows, as a matter of law, that
the original CO Ordinance and its amendments were in effect

12

The Court addresses below the
Plaintiff that he required a CO
Ordinance in effect at the time
new buyer re-occupied the home,

issue of Kilmer informing
to sell his house, when the
only required a CO when the
not when the house was sold.

19

when Plaintiff contacted Kilmer on February 27, 2014. 13
ii.

Plaintiff’s due process claims

Having determined the local law in effect during the
relevant time period, the Court now turns to the merits of
Plaintiff’s due process claim.

The Due Process Clause of the

Fourteenth Amendment provides that no state shall “deprive any
person of life, liberty, or property, without due process of
law.”

U.S. Const. Amend. XIV, § 1.

The Due Process Clause

contains both a procedural and substantive component, American
Exp. Travel Related Services, Inc. v. Sidamon-Eristoff, 669
F.3d 359, 366 (3d Cir. 2012), and Plaintiff in this case has
asserted claims for violations of his substantive due process
right.

To prove a substantive due process claim, a plaintiff

must show: (1) he was deprived of a protected property
interest; and (2) a state actor acted with a degree of
culpability that shocks the conscience.

Chainey v. Street,

523 F.3d 200, 219 (3d Cir. 2008); Maple Prop., Inc. v. Twp. of
Upper Providence, 151 F. App’x 174, 179 (3d Cir. 2005)

13

Plaintiff contends that it is in dispute whether Ordinance
2013-28 left undisturbed the core provisions of Ordinance
2013-17, such that inspections and the issuance of a CO were
required prior to the re-occupancy of any resold property (as
opposed to prior to any sale). (See Plaintiff’s response to
Defendants’ Statement of Undisputed Facts, at 2-3.) Plaintiff
does not further elaborate on this contention or how it
affects his claims. There is no legal or factual support for
this contention and the Court rejects it as meritless.
20

(finding conscience-shocking behavior where the misconduct
involves corruption, self-dealing, or a concomitant
infringement on other fundamental individual liberties); see
also Loscombe v. City of Scranton, 600 F. App’x 847, 852 (3d
Cir. 2015) (“As to the substantive due process claim, we note
that different standards govern depending on whether an
individual challenges a legislative act or a non-legislative
state action.”

Compare Am. Express Travel Related Services,

Inc. v. Sidamon–Eristoff, 669 F.3d 359, 366 (3d Cir. 2012)
(“In a case challenging a legislative act . . . the act must
withstand rational basis review.”), with Evans v. Sec'y Pa.
Dep't of Corr., 645 F.3d 650, 660–62 (3d Cir. 2011) (applying
a “shock the contemporary conscience” test because the
challenged conduct was non-legislative action)).
Having rejected Plaintiff’s contention that his
substantive due process rights were violated because Ordinance
2013-17 as amended was “on hold” until April 1, 2014, we turn
to his other two arguments. 14

14

Even if the CO Ordinances were “on hold” when Plaintiff
attempted to sell his mother’s home to the original buyer, his
claim would still fail because the Borough’s enforcement of
the Ordinances cannot be deemed “egregious” or “conscienceshocking.” Kilmer testified she was acting in good faith
compliance with local law having never been informed of any
suspension of the CO Ordinances. Not only does Plaintiff not
refute this testimony he adopts it as part of his motion to
add claims against Gural for an alleged failure to inform
Kilmer of the hold on the CO Ordinances. (Docket No. 54-1 at
21

First, the Court construes Plaintiff’s submissions to
argue that Kilmer’s failure to inform him that he could not
sell the house without a CO, and that a CO was only required
before the buyer reoccupied the home, violated his substantive
due process rights.

Second, Plaintiff contends by way of his

proposed first amended complaint that, even assuming the
Ordinances were in effect when he contacted Kilmer, she failed
to notify him of the Ordinances’ option of obtaining a
temporary CO, which would have saved the sale and eliminated

3, ¶ 29.) Moreover, Kilmer’s inspection of Plaintiff’s home,
and the inspection of 18 other homes during this time period,
even if they occurred during a temporary suspension of
enforcement of the CO Ordinances, served an important public
policy. As the governing body of the Borough of Palmyra
explained it “intend[ed] by the adoption of this Ordinance to
ensure that all residents live in decent housing that meets
the standards set forth by applicable codes, regulations and
statutes.” (Docket No. 47-2 at 5.) Kilmer’s efforts to
promoted decent housing to all of its residents, even if she
did so unwittingly while the Ordinances were “on hold,” cannot
be found to shock the conscience, particularly when there are
no allegations that Kilmer was acting in her self-interest or
engaged in corruption. See, e.g., Eichenlaub v. Township of
Indiana, 385 F.3d 274, 286 (3d Cir. 2004) (where property
owners asserted that “zoning officials applied subdivision
requirements to their property that were not applied to other
parcels; that they pursued unannounced and unnecessary
inspection and enforcement actions; that they delayed certain
permits and approvals; that they improperly increased tax
assessments; and that they maligned and muzzled” them, the
court finding that such alleged conduct did not pass the
“shocks the conscience test,” especially where there was no
allegation of corruption or self-dealing, the local officials
were “not accused of seeking to hamper development in order to
interfere with otherwise constitutionally protected activity
at the project site,” or there was some bias against an ethnic
group).
22

his expenditures for repair, maintenance, and property taxes.
The Court concludes that Plaintiff has failed to raise
disputed issues of material fact on either theory sufficient
to defeat summary judgment, even when viewing the evidence in
the light most favorable to Plaintiff.
To the extent that Plaintiff concedes that the CO
Ordinances were in effect but those Ordinances did not require
him to obtain a CO prior to sale, only prior to the reoccupation of the residence, we assume a factfinder would
agree that Kilmer failed to inform him of this option, which
was provided in the first amendment to the original Ordinance
effective October 1, 2013. 15

Plaintiff has provided no proof,

however, other than Plaintiff’s own statements, that the
original buyer would have proceeded with the sale without a CO
at the time of closing.

To the contrary, Plaintiff claims

that the buyer wanted a quick sale and to move into his
mother’s house “as is.”

Even though Ordinance 2013-25

permitted Plaintiff to sell his home without a CO, no new

15

Plaintiff emailed Kilmer, stating, “I have a potential buyer
[for his mother’s house] who is very interested in a quick
purchase. We believe we need to get an inspection done for a
CO?” Kilmer responded to Plaintiff, “We now require a housing
inspection for resale.” (Docket No. 55-9.) Based on this
email the Court accepts as true that Kilmer did not inform
Plaintiff that he could have sold his home without a CO with
the new owner responsible for obtaining a CO prior to moving
in, as set out in the Ordinance effective as of October 1,
2013.
23

buyer could have moved into the home until the CO was issued.
Plaintiff has not provided any proof that the original buyer
would have accepted those terms and would have agreed to be
responsible for the repairs of the 33 code violations after
the sale and prior to moving in.
In fact, Plaintiff fails to relate much detail about the
proposed sale to the original buyer at all, including the
reason why the transaction was not consummated, and only
states that the buyer “just said he’s not interested in the
house anymore, or he’s not going to buy it anymore.”
No. 47-10 at 9, Pl. Dep. 49:12-13.)

(Docket

Thus, even Plaintiff’s

own testimony does not support the premise that the buyer
would have been willing to go through with the sale but delay
occupancy until he repaired the code violations and passed a
subsequent inspection. 16
A similar fate dooms any claim regarding Kilmer’s failure
to tell Plaintiff about the option of a temporary CO.
Plaintiff has not provided any evidence (1) that Kilmer had an
independent duty to inform Plaintiff about a temporary CO when
he did not ask about one, and (2) that a temporary CO would

16

When asked if the original buyer would have bought the home
when the repairs were done, he responded, “I guess if I had
the repairs done, if I got that CO soon, he would have. But
it was already a month went by almost.” (Docket No. 47-10 at
9, Pl. Dep. 49:16-20.)
24

have saved the sale of the home.

The language of the

Ordinances provides that temporary COs are discretionary and
“may issue in certain cases.”

The temporary CO would give the

owner 60 or 90 days (depending on the Ordinance in effect at
the relevant time) to correct violations, along with
additional extensions.

Even though she was inspecting

Plaintiff’s mother’s home for a non-temporary CO, Kilmer
provided Plaintiff with as much time as he needed to make the
repairs, which resulted in a four-month extension from the
original April 30, 2014 deadline.
It is simply unclear how a temporary CO would have
changed anything.

As with the previous argument, Plaintiff

has not provided any evidence to show that the original buyer
would have followed through with the sale, moved in on a
temporary CO, assumed responsibility for 33 code violations
and submitted to re-inspection.

Thus, Plaintiff’s contention

that Kilmer’s failure to inform him of the option of a
temporary CO does not rise to the level required to prove a
substantive due process violation.
Based on the foregoing, Plaintiff’s claims that
Defendants violated his substantive due process rights by the
enforcement of the CO Ordinances and by not offering him the
option of post-sale, pre-occupancy CO or a temporary CO are
not supported by the evidence, even when viewed in the light
25

most favorable to Plaintiff.

Consequently, Defendants are

entitled to summary judgment in their favor.
2.

Plaintiff’s motion to file an amended complaint

In addition to the claims against Defendants regarding
the temporary CO, Plaintiff seeks to file an amended complaint
to add John Gural to the case, re-add Mayor Karen Scheffler to
the case, deem Kilmer, Gural, and Scheffler as policymakers
for the Borough, and assert a Monell claim against the
Borough. 17

Plaintiff’s request, filed on November 6, 2017,

comes over a year after the scheduling order permitted
amendments or the addition of new parties.

(Docket No. 18.)

His motion also comes almost seven months after the close of
discovery, which was June 30, 2017.

(Docket No. 39.)

Plaintiff’s request to add Scheffler back into the case is his
second attempt. 18
Despite Plaintiff’s belated proposed amendment, the
federal rules direct that a court “should freely give leave”
to a plaintiff to file an amended complaint, “when justice so
requires.”

Fed. R. Civ. P. 15(a)(2); see also Grayson v.

17

Plaintiff does not specifically cite to Monell in his
proposed amended complaint, and Plaintiff did not submit a
brief in support of his motion to file an amended complaint.
The Court presumes that Plaintiff premises his municipal
liability claim under Monell based on the arguments in his
briefs submitted in opposition to the summary judgment
motions.
18

See, supra, note 5.
26

Mayview State Hosp., 293 F.3d 103, 108 (3d Cir. 2002) (citing
Foman v. Davis, 371 U.S. 178, 182 (1962)) (providing that an
amendment must be permitted in the absence of undue delay, bad
faith, dilatory motive, unfair prejudice, or futility of
amendment).

Thus, the Court will address Plaintiff’s motion.

The Courts finds, however, that because such amendments would
be futile, Plaintiff’s motion to file an amended complaint
must be denied.
Plaintiff’s proposed amended complaint modifies his
original complaint in two ways: (1) Plaintiff claims that
Gural, Kilmer, and Scheffler are official policymakers for the
Borough, and the Borough is liable for the violation of his
constitutional rights; (2) Plaintiff seeks to add “false
light” First Amendment claims against Scheffler.
For his claims against Gural, Kilmer, and Scheffler as
policymakers, Plaintiff claims that Gural implemented as
Borough policy Scheffler’s request to put a hold on the CO
Ordinances, Gural failed to notify Kilmer about the hold,
Kilmer misinformed Plaintiff about the need for a CO prior to
sale as opposed to re-occupation, and Kilmer had a policy of
not informing residents about the option of a temporary CO.
Through these actions as policymakers, Plaintiff claims that
the Borough is liable for its unconstitutional policies which
violated Plaintiff’s substantive due process rights.
27

(See

generally Docket No. 54-1 at 1-14.)
Under Monell v. Dept. of Social Services of City of New
York, 436 U.S. 658, 694 (1978), “a local government may not be
sued under § 1983 for an injury inflicted solely by its
employees or agents.

Instead, it is when execution of a

government’s policy or custom, whether made by its lawmakers
or by those whose edicts or acts may fairly be said to
represent official policy, inflicts the injury that the
government as an entity is responsible under § 1983.”
Liability may be imposed against a municipality under Monell
“when the policy or custom itself violates the Constitution or
when the policy or custom, while not unconstitutional itself,
is the ‘moving force’ behind the constitutional tort of one of
its employees.”

Thomas v. Cumberland County, 749 F.3d 217,

222 (3d Cir. 2014) (citations omitted).

A policymaker is a

person who is “responsible for establishing final government
policy respecting” the activity in question and “whether an
official had final policymaking authority is a question of
state law.”

Id.

Even accepting Plaintiff’s conclusory allegations that
Gural, Kilmer, and Scheffler are policymakers for the Borough,
an allegation that Defendants firmly dispute, the other
allegations to support Plaintiff’s claims against these
Defendants and the Borough have been found to be without merit
28

and unsupported by the evidence, as discussed in detail above.
It would therefore be futile to add claims against these
parties which have already been adjudged in their favor.
With regard to Scheffler, the Court previously dismissed
Plaintiff’s First Amendment violation claims against her
(Docket No. 23), denied Plaintiff’s motion for reconsideration
on that issue (Docket No. 37), and then again denied
Plaintiff’s first motion to file an amended complaint (Docket
No. 65), which attempted to replead his First Amendment
claims.

The Court does not see any meaningful changes in his

claims against Scheffler from Plaintiff’s first complaint to
Plaintiff’s most recent proposed amended complaint.

Because

the Court has already dismissed these same claims against
Scheffler, it would be futile to permit Plaintiff to reassert
them again.
Consequently, Plaintiff’s motion for leave to file an
amended complaint must be denied.
CONCLUSION
The Court does not question the sincerity of Plaintiff’s
assertion that he “went through all this hell” related to the
sale of his mother’s home.

Selling a family home, especially

when the reason for the sale is an ailing incompetent parent,
is no doubt a stressful and emotional endeavor.

And there

seems little doubt that the defendant Borough could have done
29

a much better job conveying to the public the meaning of and
enforcing its ordinances.

But not every government misstep is

a constitutional tort.
The record is clear that even if the Borough had told
Plaintiff about the possibility of a temporary CO or that a
sale could be consummated prior to re-occupancy, Plaintiff has
offered no evidence the proposed buyer would have acted any
differently than he did.

Someone, whether it was Plaintiff or

a new buyer, would have had to undertake the hassle, expense,
and overall burden of bringing the property up to the standard
of the local code prior to occupancy.
In sum, the evidence, even when viewed in the light most
favorable to Plaintiff, does not support his claim that
Defendants violated his substantive due process rights when
they sought to enforce the core provisions of the relevant CO
Ordinance.

That same lack of evidence renders his proposed

amended complaint futile.
Defendants’ motion for summary judgment will therefore be
granted, and Plaintiff’s motion for leave to file an amended
complaint will be denied.

An appropriate Order will be

entered.

Date:
April 27, 2018
At Camden, New Jersey

s/ Noel L. Hillman
NOEL L. HILLMAN, U.S.D.J.
30