Andrews v. Bureau of Codes Administration Office City of Harrisburg et al

Filing 128

MEMORANDUM AND ORDER: (1) Dfts mtn for summary judgment 115 is GRANTED in part and DENIED in part as follows:(A) GRANTED in all respects as to Dft Bureau of Codes;(B) GRANTED in all respects as to Dft David Patton;(C) GRANTED as to Pltfs Fourth Ame ndment unreasonable seizure and Fifth Amendment gvt deprivation claims;(D) DENIED as to Pltfs Fourth Amendment Equal Protection and Fourteenth Amendment Substantive Due Process claims.(2) Pursuant to footnote four in the accompanying memorandum, Pltf s Fourteenth Amendment Procedural Due Process claim is DISMISSED.(3) The clerk of court shall defer the entry of judgment until after trialin this matter.(4) The court will issue a separate order setting forth the remainingcase management deadlines for the balance of the case, including a trial date. Signed by Honorable Sylvia H. Rambo on 02/24/12. (ma, )

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
DELAINE ANDREWS,
Plaintiff
v.
BUREAU OF CODES
ADMINISTRATIVE OFFICE, et al.,
Defendants

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Civil No. 1:08-CV-1669
JUDGE SYLVIA H. RAMBO

MEMORANDUM
Pro se Plaintiff DeLaine Andrews has filed suit under 42 U.S.C. §§
1981, 1982, and 1983, asserting numerous violations of her constitutional rights.
Plaintiff claims that she was treated less favorably than other similarly-situated
property owners with respect to a condemnation order regarding her property.
Defendants have moved for summary judgment. (Doc. 115.) For the following
reasons, Defendants’ motion will be granted in part and denied in part.
I.

Background
A. Parties
The following facts are undisputed, except where noted.1 Plaintiff, an

African American, owned the property that is the subject of this suit, located at 342
1

Plaintiff did not submit a statement of fact responding to Defendants’ statements of fact, as
required under Middle District Local Rule 56.1. Rather, Plaintiff’s counterstatement of fact gives an
entirely different version of facts and is replete with argumentative and conclusive language. However,
given Plaintiff’s pro se status and the leniency afforded to such plaintiffs, see Haines v. Kerner, 404
U.S. 519 (1972), the court will review Plaintiff’s counterstatement of facts and any relevant pleadings,
depositions, answers to interrogatories, admissions on file, or affidavits to determine if Defendants’
statements of fact are disputed. The court will otherwise rely on Defendants’ statements of fact (Doc.
116, “SMF”) and the accompanying citations to the record. See U.S. ex rel. Paranich v. Sorgnard, 396
F.3d 326, 330 n.5 (3d Cir. 2005) (under M.D. Pa. L.R. 56.1, the Third Circuit noted that the District
Court adopted all the facts of one party that were not clearly disputed by the other party with sufficient
citation to the record.)

South 25th Street, Harrisburg, Pennsylvania (“the property”). (SMF ¶ 1.) Defendant
Bureau of Codes Administration Office is a division of the Department of Building
and Housing Development which is a government agency within the City of
Harrisburg. (Second Amended Complaint (hereinafter “Compl.” ), Doc. 28, at ¶ 6.)2
Defendant David Patton is an employee of the Bureau of Codes. (SMF ¶ 2.)
Plaintiff states the Patton holds the title of Codes Administrator (Compl. ¶ 7),
whereas Defendants state that he is the Deputy Director of Codes Enforcement (Doc.
129, Def.’s Answer, ¶ 7). Plaintiff states that Defendant Earl Dieffenderfer is a
Codes Enforcement Officer for the City of Harrisburg. (Compl. ¶ 8.) Defendants
deny this allegation. (Def.’s Answer, ¶ 8.) Lastly, Plaintiff states that Defendant
Arden Emerck is the Assistant Director of Building and Housing Development
(Compl. ¶ 9), whereas Defendants claim he is the Assistant Codes Administrator
(Def.’s Answer, ¶ 9). Regardless, the court does not find the disparities in these
individuals’ titles to have any dispositive affect on its ruling.
B.

Facts

In March or April, 2006, a fire occurred at Plaintiff’s property. (SMF ¶
11.) Plaintiff believes the fire was caused by a five-gallon can of polyurethane in the
house, which she believes was used by children to start the fire. (SMF ¶ 12.) The
property sustained damages, which included broken windows in the back and in the
living room; damaged doors, one of which had to be boarded up; soot damage
throughout the house; damage to the walls in the living room, dining room and
2

Plaintiff labels Defendant as “Bureau of Codes Administration Office,” whereas
Defendants’ answer admits that the “Bureau of Inspection and Codes Office” is a Bureau within the
Department of Building and Housing Development within the City of Harrisburg. (Def.’s Answer, ¶ 6.)
Neither party disputes the identity or nature of this Defendant and, thus, for the sake of clarity, the court
will refer to this Defendant as the “Bureau of Codes.”
2

kitchen; and damage to walls on the second floor. (SMF ¶ 13.) Furthermore, electric
service was disconnected as a result of the fire. (SMF ¶ 14.) The property did not
have gas service for as long as Plaintiff owned it. (Id.)
On September 7, 2006, Defendant Dieffenderfer performed an
inspection at the property. (SMF ¶ 15.) Dieffenderfer noted the following violations
and unsafe conditions:
Structure open to unauthorized entry, utilities are off, door
and window units damaged/missing, structure has fire
damage rendering it unsafe, open allowing weather to
interior.
(SMF ¶ 16; Doc. 16-2.)
Dieffenderfer’s overall evaluation of the building states:
Structure is vacant, deteriorated due to lack of maintenance
and fire, it is a blight to the neighborhood, a fire hazard, a
hazard to public health and safety, inspection limited to
exterior views.
(Id.) Plaintiff claims that a structural engineer concluded that the property was
structurally sound and any damage was only cosmetic damage. (Doc. 116-1,
Andrews Dep., pp. 85, 121-22.)
On September 11, 2006, the City of Harrisburg’s Department of
Building and Housing Development issued Condemnation Order No. 2006-120
against Plaintiff’s property, requiring Plaintiff to procure the appropriate permits to
rehabilitate the structure within fifteen days of the order, or face demolition. (SMF ¶
18; Doc. 16-2.) The order also advised Plaintiff of her right to appeal the order
within fifteen days and explained that a $100 application fee or proof of indigence
must accompany the appeal. (Id.) The condemnation order was based on
Dieffenderfer’s inspection on September 7, 2006. (SMF ¶ 19.) At the time of the
3

condemnation order, neither the gas service nor the electric service was turned on at
the property and all the windows were knocked out in the back of the property, as
were the living room windows in the front of the property. (SMF ¶¶ 20-22.)
Following the fire, children were continuing to vandalize her property. (SMF ¶ 23.)
Plaintiff received a copy of the condemnation order and never appealed the order nor
called anyone in the Bureau of Codes to request more time to fix the property.
(SMF ¶¶ 25-26.) Plaintiff claims, however, that she wrote a letter to the Bureau of
Codes stating that she wanted to appeal but was unable to do so because of financial
reasons. (Doc. 116-1, Andrews Dep., pp. 75-77, 106.) Defendants Emerick and
Patton advised Plaintiff that her letter was insufficient to show her indigence and
Plaintiff took no further action to pursue an appeal. (Id. at pp. 76, 106.)
Defendant Dieffenderfer went back to the property on October 19, 2006
as a result of complaints the Bureau of Codes received regarding the property. (SMF
¶ 28.) Seeing no evidence that any work was taking place to rehabilitate the
property, a citation was issued on October 19, 2006, with a hearing date set for May
29, 2007. (SMF ¶ 29.) Dieffenderfer received another complaint about the property,
resulting in another citation issued on November 9, 2006. (SMF ¶ 30.) On February
14, 2007, Dieffenderfer returned to the property and, finding no evidence of
rehabilitation, issued a third citation. (SMF ¶ 32.) A fourth citation was issued on
February 26, 2007, after Dieffenderfer once again found the property in the same
condition. (SMF ¶ 33.)
A hearing on these citations before the District Justice was held on May
29, 2007. (SMF ¶ 34.) Plaintiff did not attend the hearing and was found guilty of
the citations. (SMF ¶ 35.) Plaintiff was granted a nunc pro tunc summary appeal,
4

and a hearing on that appeal was scheduled for April 29, 2008, in the Court of
Common Pleas of Dauphin County. (SMF ¶ 36; Doc. 116-3.)
Prior to the April 2008 hearing, Plaintiff met with Dieffenderfer at the
property on November 13, 2007. (SMF ¶ 38.) At this meeting, Dieffenderfer
observed fire damage and saw minimal evidence of work having been done. (SMF ¶
39.) Plaintiff disputes that minimal work was completed, and claims that she
installed new windows, began replacing plaster, and substantially completed the
electrical work and the electricity was functioning. (Doc. 116-1, Andrews Dep., pp.
129-130.) Dieffenderfer gave Plaintiff a Narrative Inspection Form with a list of
items that needed to be corrected within thirty days to correct the violations that
existed. (SMF ¶ 40.) The list included: sealing openings in the party wall in the
kitchen and living room, replacing missing or damaged windows, completing repairs
to the electrical system and having it inspected by a third party, and completely
rehabilitating the kitchen and activating all utilities so the heating system could be
checked. (SMF ¶ 41; Doc. 116-4.) Plaintiff also claims that Defendants
Dieffenderfer and Emerick added additional housing compliance requirements to the
original condemnation order including the requirement to have “heat turned on,”
which is not listed as a requirement for vacant houses in any city ordinance or
maintenance code. (Doc. 123 ¶ 21.)
On April 24, 2008, three days prior to the scheduled hearing,
Dieffenderfer visited the property and found that Plaintiff had largely failed to
complete the list of items on the Narrative Inspection Form, noting that the back
windows were still boarded, and broken windows and fire debris remained on the

5

side of the property. (SMF ¶¶ 42-43.) Defendant also took a photograph of the
property’s electrical meter base, with no meter in it. (SMF ¶ 44.)
A hearing in the Dauphin County Court of Common Pleas was held on
April 29, 2008. Plaintiff was again found guilty of the three citations. (SMF ¶ 46;
Doc. 116-3, Transcript of proceeding.) The court stated “there is just no question at
all about [Plaintiff’s] failure to act diligently or . . . reasonably.” (Doc. 116-3 at 94 of
100.) Plaintiff was given an option to avoid jail time by either selling the property, or
rehabilitating the property such that an occupancy permit could be issued within sixty
days of the hearing. (SMF ¶ 48.) Ultimately, Plaintiff decided to sell the property for
less than $10,000, despite a market value that she estimated at $79,000. (SMF ¶ 49;
Doc. 116-1, Andrews Dep., p. 152.) The property was sold to Professional Grade,
Inc. on June 30, 2008. (SMF ¶50.) According to a Delaware Corporation Report,
DeLaine Andrews of 1908 Oak Lane Road, Wilmington, Delaware, is listed as the
registered agent of Professional Grade, Inc. (SMF ¶ 51; Doc. 116-6.) As of March,
2010, the front and side windows of the property were still boarded. (SMF ¶ 52; Doc.
116-7.)
C.

Procedural History

Plaintiff filed a complaint on September 8, 2008. (Doc. 1.)
Defendants filed a motion to dismiss the complaint on December 22, 2008. (Doc.
10.) By order dated February 9, 2009, Plaintiff was granted leave to file an amended
complaint (Doc. 19) and her amended complaint was filed that same day (Doc. 20).
Defendants filed their answer on March 5, 2009. (Doc. 24.) Plaintiff then filed a
second amended complaint on August 14, 2009, having been granted leave by the
court to do so. (Doc. 28.) The complaint alleges that Defendants’ actions amount to
6

a criminal prosecution that was more harsh than other similarly-situated landowners
as a result of her minority status and in retaliation for her filing prior civil rights
complaints with City of Harrisburg Human Relations Commission. (Compl. ¶ 21.)
The complaint also alleges that Defendant Dieffenderfer and another code
enforcement officer discussed measures to “get her back” saying things such as
“don’t worry, you know I don’t like those people.” (Id. ¶ 23.) It further alleges that
Defendant Dieffenderfer said, within earshot of both Plaintiff and Plaintiff’s husband
that “he would never allow ‘you niggers’ to win” and that Dieffenderfer used similar
racial epithets against other minority owners. (Id. ¶¶ 68, 69.) Read generously, the
complaint brings the following claims: Count one – First Amendment retaliation and
access to courts claims; Count three3 – Fourth Amendment unreasonable seizure
claim and violation of the Fair Housing Act, 42 U.S.C. § 1982; Count four – Fifth
Amendment violation involving a government deprivation without just compensation;
Count five – Fourteenth Amendment procedural and substantive due process
violations; Count six – Fourteenth Amendment equal protection violations; Count
seven – violations of 42 U.S.C. §1981 (and another Fourteenth Amendment Equal
Protection Claim); and Count eight – Abuse of process and wrongful use of legal
proceedings.
Defendants answered the complaint on August 24, 2009. (Doc. 29.)
Defendants never re-filed a motion to dismiss in response to the amended complaints
but continue to maintain that all their actions were reasonable under the circumstances
and no constitutional violations occurred. Following numerous extensions and an
unsuccessful settlement conference, trial was scheduled for June 27, 2011. However,
3

There is no count two in the complaint.
7

following a pretrial conference and a review of the parties’ pretrial memoranda, the
court issued an order continuing the trial, noting that:
[I]t is evident that trial in this matter in the present state is
not yet appropriate as there is confusion regarding what
claims are being properly raised. Presently, the claims at
issue appear to be duplicitous, imprecise, and possibly
insufficient. The court notes that a motion to dismiss was
previously filed by Defendants regarding Plaintiff’s
original complaint. While that motion was pending,
Plaintiff was granted leave to file an amended complaint,
thereby mooting the motion to dismiss. A second amended
complaint was later filed. No motion to dismiss was filed
thereafter regarding the second amended complaint. It is
clear this case would benefit from a clarification of the
claims at issue.
(Doc. 114.)
Defendants thereafter filed a motion for summary judgment on July 15,
2011 (Doc. 115) accompanied by a statement of material facts (Doc. 116) and a brief
in support (Doc. 117). Defendants move for summary judgment as to: (1) all claims
against the Bureau of Codes, (2) Plaintiff’s procedural due process claim,4 (3)
Plaintiff’s substantive due process claim, (4) Plaintiff’s equal protection claim, and
(5) the individual Defendants on the basis of qualified immunity.5 Following an
extension, Plaintiff filed a brief in opposition on September 14, 2011 (Doc. 122) and
counterstatement of material facts (Doc. 123). No reply brief was filed. On October
20, 2011, the court issued an order staying the case in light of the Suggestion of

4

In her Brief in Opposition, Plaintiff withdraws her procedural due process claim. (Doc.
122 at 19 of 29.) Accordingly, Plaintiff’s procedural due process claim will be dismissed.
5

Although Defendants do ask for dismissal of all claims, either on the basis of qualified
immunity, or pursuant to the Supreme Court’s decision in Heck v. Humphry, 512 U.S. 477 (1994), both
arguments of which are rejected below, Defendants’ motion only moves for summary judgment with
specificity on the above-mentioned claims. As such, the motion is, in actuality, a motion for partial
summary judgment, and those claims not addressed with specificity will survive Defendants’ motion.
8

Bankruptcy filed by counsel for Defendant City of Harrisburg. (Doc. 125.) That stay
was lifted by court order dated December 7, 2011. (Doc. 126.) Thus, the motion is
now ripe for disposition.

II.

Standard
Federal Rule of Civil Procedure 56 sets forth the standard and

procedures for the grant of summary judgment. Rule 56(a) provides, “[t]he court
shall grant summary judgment if the movant shows that there is no genuine dispute as
to any material fact and the movant is entitled to summary judgment as a matter of
law. Fed R. Civ. P. 56(a)6; see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-323.
A factual dispute is “material” if it might affect the outcome of the suit under the
applicable substantive law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986). A factual dispute is “genuine” only if there is a sufficient evidentiary basis
that would allow a reasonable fact-finder to return a verdict for the nonmoving party.
Id. When evaluating a motion for summary judgment, a court “must view the facts in
the light most favorable to the non-moving party,” and draw all reasonable inferences
in favor of the same. Hugh v. Butler Cnty. Family YMCA, 418 F.3d 265, 267 (3d Cir.
2005), cert denied, 546 U.S. 1094 (2006).
The moving party bears the initial burden of demonstrating the absence
of a disputed issue of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 324

6

See Fed. R. Civ. P. 56, Advisory Comm. Note (2010 Amendments) (The frequently cited
standard for summary judgment is now set forth in Rule 56(a) rather than Rule 56(c)(2010). The
Advisory Committee explains that despite the language change, “[t]he standard for granting summary
judgment remains unchanged” and “[t]he amendments will not affect continuing development of the
decisional law construing and applying these phrases.”).
9

(1986). “Once the moving party points to evidence demonstrating no issue of
material fact exists, the non-moving party has the duty to set forth specific facts
showing that a genuine issue of material fact exists and that a reasonable factfinder
could rule in its favor.” Azur v. Chase Bank, USA, Nat’l Ass’n, 601 F.3d 212, 216 (3d
Cir. 2010). The nonmoving party may not simply sit back and rest on the allegations
in its complaint; instead, it must “go beyond the pleadings and by [its] own affidavits,
or by the depositions, answers to interrogatories, and admissions on file, designate
specific facts showing that there is a genuine issue for trial.” Celotex Corp., 477 U.S.
at 324 (internal quotations omitted); see also Saldana v. Kmart Corp, 260 F.3d 228,
232 (3d Cir. 2001) (citations omitted). Summary judgment should be granted where
a party “fails to make a showing sufficient to establish the existence of an element
essential to that party’s case, and on which that party will bear the burden at trial.”
Celotex, 477 U.S. at 322-23. “‘Such affirmative evidence – regardless of whether it
is direct or circumstantial – must amount to more than a scintilla, but may amount to
less (in the evaluation of the court) than a preponderance.’” Saldana, 260 F.3d at 232
(quoting Williams v. Borough of West Chester, 891 F.2d 458, 460-61 (3d Cir. 1989)).

III.

Discussion
A. Section 1983

Section 1983 states in relevant part:
Every person who, under color of any statute, ordinance,
regulation, custom, or usage, of any State or Territory or
the District of Columbia, 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
10

in an action at law, suit in equity, or other proper
proceeding for redress . . . .
42 U.S.C. § 1983. Section 1983 “is not itself a source of substantive rights, but a
method for vindicating federal rights elsewhere conferred by those parts of the United
States Constitution and federal statutes that it describes.” City of Monterey v. Del
Monte Dunes, 526 U.S. 687, 749 n.9 (1999) (internal quotation omitted). To prevail
in an action under § 1983, a plaintiff must demonstrate: (1) a violation of a right
secured by the Constitution and the laws of the United States and (2) that the alleged
deprivation was committed by a person acting under color of state law. Nicini v.
Morra, 212 F.3d 798, 806 (3d Cir. 2000); Moore v. Tartler, 986 F.2d 682, 685 (3d
Cir. 1993). “The first step in evaluating a section 1983 claim is to ‘identify the exact
contours of the underlying right said to have been violated’ and to determine
‘whether the plaintiff has alleged a deprivation of a constitutional right at all.’”
Nicini, 212 F.3d at 806 (quoting Cnty. of Sacramento v. Lewis, 523 U.S. 833, 841 n.5
(1998)). Here, Plaintiff brings claims pursuant to the First, Fourth, Fifth and
Fourteenth Amendments. The court will address only those claims moved for
summary judgment by Defendants.
B.

Claims against Bureau of Codes

As an initial matter, the court rejects Defendants’ arguments that
Bureau of Codes must be dismissed because it is not a “person” within the meaning
of civil rights jurisprudence. The court acknowledges that departments or sub-units
of a municipal government cannot be sued in conjunction with municipalities because
those departments are merely administrative arms of the local municipality, not a
separate judicial entity. See DeBellis v. Kulp, 166 F. Supp. 2d 255, 264 (E.D. Pa.
11

2001) (granting summary judgment to police department “because the department is
merely an administrative arm of the local municipality . . . .”); Open Inns, LTD, v.
Chester Cnty., 24 F. Supp. 2d 410, 417, 425 (E.D. Pa. 1998) (dismissing claims
against Chester County Sheriff’s Department and substituting Chester County as the
proper defendant.); Streater v. City of Camden Fire Dep’t, 567 F. Supp. 2d 667, 674
n.5 (D.N.J. 2008) (fire department cannot be sued in conjunction with City). Here,
Plaintiff sued the Bureau of Codes, which is an administrative arm of the City of
Harrisburg. (SMF ¶ 2.) Although the Bureau of Codes cannot be a party to this
action, the court will treat Plaintiff’s complaint as though she has sued the City of
Harrisburg and will analyze her claims accordingly.
For municipal liability to attach to the City of Harrisburg, Plaintiff must
allege that the City itself caused a constitutional violation. Monell v. Dep’t of Soc.
Servs., 436 U.S. 658, 694 (1978). Respondeat superior is not a viable theory of
municipal liability. Id. at 663. Instead, a plaintiff must plead and prove that “through
its deliberate conduct, the municipality was the ‘moving force’ behind the injury.”
Bd. of the Cnty. Comm’rs of Bryan Cnty. v. Brown, 520 U.S. 397, 404 (1997)
(emphasis in original); accord Jett v. Dallas Indep. Sch. Dist., 491 U.S. 701, 737
(1989). To do so, a plaintiff must allege that a municipal custom or policy was the
proximate cause of the constitutional injury sustained. C.N. v. Ridgewood Bd. of
Educ., 430 F.3d 159, 173 (3d Cir. 2005); Andrews v. City of Phila., 895 F.2d 1469,
1480 (3d Cir. 1990). To establish that a municipality has a custom that violates
§1983, a plaintiff must identify a custom or practice “so permanent and well-settled
as to virtually constitute law.” Beck v. City of Pittsburgh, 89 F.3d 966, 971 (3d Cir.
1996) (citing Andrews, 895 F.2d at 1480). A policy is established if a plaintiff can
12

show that a “decisionmaker possessing final authority to establish municipal policy
with respect to the action ‘issues an official proclamation, policy or edict.’” Id.
Defendants argue that Plaintiff offers no evidence that the City of
Harrisburg (or Bureau of Codes) has established a custom or policy that violates
Plaintiff’s constitutional rights. Plaintiff disagrees in this regard, but offers only that
“Defendants [Art Emerick, David Patton, and Earl Dieffenderfer] have established a
long standing practice and policy of discrimination against minorities and
complaining owners.” (Doc. 122 at 13 of 19.) This argument, however, only
addresses the actions of the individual defendants. Plaintiff does not argue, or cite to
any evidence that the City of Harrisburg deliberately, through custom or policy,
violated Plaintiff’s constitutional rights. In fact, the court’s review of the record
reveals that it is completely devoid of any such evidence. Accordingly, the court will
grant summary judgment as to the City of Harrisburg on all counts.
C.

Claims against Defendant David Patton

“‘[D]efendant[s] in a civil rights action must have personal
involvement’ to be liable.” Sutton v. Rasheed, 323 F.3d 236, 249 (3d Cir. 2003)
(quoting Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1988)). Here,
Plaintiff’s complaint identifies Defendant Patton as an employee of the Bureau of
Codes, but never makes any substantive allegations against him. (See Compl. ¶ 7.)
Furthermore, Plaintiff’s counterstatement of material facts (Doc. 123) also fails to
adduce any facts or allegations that would indicate that Defendant Patton had any
personal involvement in any activity that might amount to a constitutional violation.
In fact, the only substantive allegation that the court can identify anywhere on the
record regarding Defendant Patton is that he, along with Defendant Emerick, refused
13

to waive the appeal fee based on Plaintiff’s insufficient showing of indigence. In
short, Plaintiff has not set forth any evidence regarding Defendant Patton that could
establish any constitutional violation. Accordingly, summary judgment will be
granted as to Defendant David Patton on all counts.
D.

Heck Argument

Defendants next argue that, pursuant to the Supreme Court’s decision in
Heck v. Humphrey, 512 U.S. 477 (1994), Plaintiff cannot proceed with her §1983
claim unless the underlying criminal case terminated in her favor. (Doc. 117 at 15 of
23.) Defendants argue that because Plaintiff was convicted of the underlying charges
in the Dauphin County Court of Common Pleas, she cannot proceed on any claims
for a violation of her constitutional rights in connection with the filing or prosecution
of these citations. (Id.) This argument fails.
In Heck, the Supreme Court made it clear that an action under §1983
could not be maintained on the basis of events leading to a conviction which has not
been reversed or impaired by other official proceedings if a judgment in favor of the
plaintiff in the civil case would imply that the conviction was invalid. 512 U.S. at
485-86. The court reasoned that, in order to prevail in the §1983 action, a plaintiff
would have to negate an element of the offense of which he has been convicted. Id.
at 487 n.6.
Having reviewed the transcript of the summary appeal in the Dauphin
County Court of Common Pleas, the court does not see how a favorable judgment in
the present action would call into question Plaintiff’s underlying conviction. The
issue resolved by the Court of Common Pleas was Plaintiff’s non-compliance with
the citations. The court found as follows:
14

We find the defendant guilty at all counts. To me there is
just no question at all about her failure to act diligently or,
as the International Property Maintenance Code says,
reasonably.
(Doc. 116-3 at 92-93.) This case, however, is different in that Plaintiff is not
attempting to invalidate her convictions or prove her compliance with the
condemnation order or citations, but rather is alleging that she was treated more
harshly than other similarly-situated property owners. The underlying action did not
address these allegations, and instead only analyzed Plaintiff’s compliance with the
terms of the condemnation order or citations. Indeed, the court could find that
Plaintiff did suffer disparate treatment without affecting or infringing on the
Common Pleas Court’s finding of her noncompliance with the terms of those
particular citations. See Nelson v. Jashurek, 109 F.3d 142, 145-46 (3d Cir. 1997)
(declining to apply Heck on similar grounds.) Consequently, Heck v. Humphrey does
not bar this case.
E.

Equal Protection

Next, Plaintiff claims that Defendants treated her adversely and
differently than other similarly-situated, non-minority property owners and other
owners who have not filed discrimination complaints against the Bureau of Codes
(“non-complaining” property owners), all in violation of the Equal Protection Clause
of the Fourteenth Amendment. The Equal Protection clause provides that no state
shall “‘deny to any person within its jurisdiction the equal protection of its laws,’
which is essentially a direction that all persons similarly situated should be treated
alike.” City of Cleburn v. Cleburne Living Ctr., 473 U.S. 432, 439 (1985).
Plaintiff’s equal protection claim is based on a selective enforcement
theory as well a “class of one” theory. Selective enforcement is a form of
15

discriminatory law enforcement that has been held to violate the Equal Protection
Clause. Davis v. Malitzki, 2011 U.S. App. LEXIS 23029, *16 (3d Cir. Nov. 17,
2011). Under a selective enforcement claim, Plaintiff must prove (1) that persons
similarly situated were not prosecuted and (2) that the decision to prosecute was
made on the basis of an unjustifiable standard, such as race, religion, or some other
arbitrary factor. Id. Under a “class of one” theory, Plaintiff must establish that (1)
Defendant treated her differently from others similarly situated, (2) Defendant did so
intentionally, and (3) there was no rational basis for the difference in treatment.
Karnchak v. Swatara Twp., 540 F. Supp. 2d 540, 550 (M.D. Pa. 2008).7
Defendants move for summary judgment on the grounds that “Plaintiff
has no specific evidence that she received unfavorable treatment due to her race or
due to the fact that she filed a previous complaint against [a non-defendant BOC
employee].” Defendants also argue that Plaintiff has no evidence that the race of any
other property owners was known by any of the moving Defendants. The court
disagrees with Defendants and finds that there is a genuine issue of material fact
regarding whether Plaintiff received unfavorable treatment due to her race or in
retaliation for her previously filed complaints.
Plaintiff’s burden at summary judgment in a § 1983 case is to provide
some “affirmative evidence from which a jury could find that the plaintiff has carried
his or her burden of proving the pertinent motive.” Crawford-El v. Britton, 523 U.S.

7

As this court stated in Hookey v. Dalton, 2010 U.S. Dist. LEXIS 112144, *12 (M.D. Pa.
Oct. 21, 2010), the primary difference between the two theories is that the “traditional theory protects a
plaintiff from discriminatory treatment based on membership in a protected class such as gender or race
[while] [i]n contrast, under the class-of-one theory, a plaintiff may have an equal protection claim even
absent protected-class status if he or she alleges irrational and intentional differential treatment when
compared with similarly situated individuals.” (citations omitted).
16

574, 600 (1998). To establish her equal protection claim, Plaintiff is required to
produce evidence – more than a scintilla, but less than a preponderance – that a
discriminatory purpose was a motivating factor in Defendants’ decision to take action
against Plaintiff. See Desi’s Pizza, Inc. v. City of Wilkes-Barre, 2006 U.S. Dist.
LEXIS 59610, *69 (M.D. Pa. Aug. 23, 2006).
The gist of Plaintiff’s equal protection claim is that she was singled out
and treated by Defendants in a harsher manner than other non-complaining, nonminority, but otherwise similarly-situated land owners, and that the Defendants were
motivated by racial bias. Here, the court finds Plaintiff has adduced sufficient
evidence to survive Defendants’ motion. For example, Plaintiff specifically identifies
several nearby properties8 owned by non-complaining or non-minority individuals
that were condemned or in a condemnable state for ten or more years without
prosecution from the Bureau of Codes until after Plaintiff filed her complaint. (Doc.
122, p. 18 of 29; Doc. 123, ¶¶ 2, 12). Plaintiff attaches to her counterstatement of
fact pictures and condemnation orders associated with these properties. (Doc. 123,
Ex. I, J, K, L.) Plaintiff also identifies by name eight other minority property owners9

8

These properties and owners include: John Schachte and William Rothman of 912 N. 6th
Street; Timonty Moharis, 1000 N. 6th St. (property owned by Annette Antoun); 1006 N. 6th St. (property
owned by Annette Antoun); properties at 1935 Market Street (owned by Agnes Wallace) and 1701 Elm
Street (owned by Jennifer Julian). (Doc. 122 at 18 of 29; Doc. 123 ¶¶ 3, 12.) Plaintiff argues
specifically that Defendant Emerick treated Schachte and Rothman with greater leniency than other
minority property owners by issuing construction permits for fire restoration repairs (Doc. 123, Exs. E
and E2) without condemning the property and requiring repairs be made within fifteen days. Plaintiff
contends that Defendant Emerck recently condemned the property at 1000 N. 6th St. after she filed her
complaint “for the purpose of appearance to the Jury that Defendants administer their Property
Maintenance Code in a fair and equitable manner.” (Doc. 123, ¶ 16.)
9

Plaintiff identifies these individuals as Andean Smith, Phillip Brown, Lamar Palmer,
Michelle Morrison, Celestine Henderson, Torian O. Burney, Andrea Willis, and Gary Willis Burney.
(Doc. 123 ¶¶ 3,6.)
17

who all sold or lost their property for “failure to comply with Property Maintenance
Code 108.1.1” and were not given the same pre-condemnation notices and
allowances for time to comply as the other non-minority, non-complaining owners.
Plaintiff states that several of these owners are available and prepared to testify at
trial. (Doc. 123 at ¶¶ 3, 6.) Plaintiff claims, and Defendants do not specifically
refute, that all these property owners are similarly situated. Regardless, “whether
persons are similarly situated is a factual issue that should be submitted to the jury.”
Desi’s Pizza, 2006 U.S. Dist. LEXIS 59610, at *75 (citing Pagliuco v. City of
Bridgeport, 2005 U.S. Dist. LEXIS 33738 (D. Conn. Dec. 13, 2005)). In short,
Plaintiff has offered more than sheer speculation that she and others were treated
differently and, by specifically identifying allegedly similarly-situated individuals
and comparing her, and others’ treatment by Defendants, Plaintiff has met her burden
at this stage with regard to this claim. See, e.g., Media Alliance v. Mirch, 2011 U.S.
Dist. LEXIS 84950, *24 (N.D.N.Y. Aug. 2, 2011) (“At the summary judgment stage,
a plaintiff must present evidence comparing [herself] to individuals that are similarly
situated in all material respects” and dismissing for failing to identify individuals by
name or any other means.)
The court is also satisfied that Plaintiff has made a sufficient showing
that a discriminatory purpose was a motivating factor for Defendants. Plaintiff put
forth evidence, which is not specifically refuted by Defendants, suggesting that at
least one of the named Defendants made racially disparaging remarks regarding
African Americans. Further, the alleged disparate treatment of identified minority
property owners from identified non-minority property owners also suggests a
possible racial motivation.
18

Defendants argue that the undisputed facts show nothing more than
proper treatment of Plaintiff’s property given the condition it was in. (Doc. 117, at
20 of 23.) However, “it is well-established . . . that selective prosecution may
constitute illegal discrimination even if the prosecution was otherwise warranted.”
Desi’s Pizza, Inc. v. City of Wilkes-Barre, 321 F.3d 411, 425 (3d Cir. 2003) (citing
Wayte v. United States, 470 U.S. 598, 608 (1985)). Thus, dismissal is not warranted
on this ground even if Defendants had both a mixed legitimate and non-legitimate
motive.
In short, the court finds genuine issues of material fact remain regarding
Defendants’ motives and further finds that the facts, viewed most favorably for
Plaintiff, could lead a reasonable jury to conclude that Defendants acted with a
racially discriminatory purpose in treating Plaintiff more harshly than other similarlysituated individuals. Accordingly, Defendants’ motion for summary judgment is
denied with respect of Plaintiff’s equal protection claim.
F.

Substantive Due Process

The Fourteenth Amendment provides, in part, that “no State [shall]
deprive any person of life, liberty, or property without due process of law . . . .” U.S.
Const. Amend. XIV, § 1. “To prevail on a substantive due process claim under §
1983, a plaintiff must establish as a threshold matter that he has a protected property
interest to which the Fourteenth Amendment’s due process protection applies.” Para
v. City of Scranton, 2008 U.S. Dist. LEXIS 53854, *31 (M.D. Pa. July 10, 2008)
(quoting Woodwind Estates Ltd. v. W.J. Gretkowsi, 205 F.3d 118 (3d Cir. 2000)). “A
substantive due process claim grounded in an arbitrary exercise of governmental
authority may be maintained only where the plaintiff has been deprived of a
19

‘particular quality of property interest.’” Id. On this point, the court is satisfied that
Plaintiff’s ownership in and use and enjoyment of property are interests protected by
substantive due process. See Wrench Transp. Sys. v. Bradley, 340 F. App’x 812, 816
(3d Cir. 2009) (citing DeBlasio v. Zoning Bd. of Adjustment, 53 F.3d 592, 600-01
(3d. Cir. 1995), abrogated on other grounds by United Artists Theatre Cir., Inc. v.
Twp. of Warrington, 316 F.3d 392, 400 (3d Cir. 2003)); see also Hammond v. City of
Wilkes-Barre, 2011 U.S. Dist. LEXIS 34312, *16 (M.D. Pa. Mar. 30, 2011); Grimm
and Grimm Bros. Realty Co. v. Sweeney, 249 F. Supp. 2d 571, 608 (E.D. Pa. 2003).
Defendants argue that the deprivation of Plaintiff’s property interest by
the state actors must “shock the conscience.” (Doc. 117, at 18 of 23 (citing United
Artists Theater Circuit, Inc. v. Township of Warrington, 316 F.3d 392 (3d Cir.
2003))), and that “Plaintiff cannot point to any ‘conscience-shocking’ conduct on the
part of any of the Moving Defendants associated with this alleged deprivation.” (Id.)
The court agrees that, in land-use cases, the Third Circuit applies the “shocks the
conscience” standard. See United Artists, 316 F.3d at 400-01; Para, 2008 U.S. Dist.
LEXIS 53854 at *31 (applying the “shocks the conscience” standard to Plaintiff’s
substantive due process claim where his real property was condemned and
demolished following a fire). The “shocks the conscience” standard replaced the
less stringent “improper motive” standard enunciated in Bello v. Walker, 840 F.2d
1124 (3d Cir. 1988). Plaintiff’s burden in satisfying this standard is considerable: a
substantive due process claim “will survive summary judgment only if plaintiff can
present evidence from which a jury could conclude that the locality’s decision was
not rationally related to a legitimate land use goal.” Corneal v. Jackson Township,
313 F. Supp. 2d 457, 469 (M.D. Pa. 2003). In Corneal, this court found that the
20

defendants acted with “mixed motives,” one related to a legitimate land regulation
purpose and the other related to an illegitimate purpose rooted in “personal animus.”
Id. at 468. The court concluded that such a showing does not satisfy the “shocks the
conscience” standard because the defendant’s actions were based at least partly on
legitimate land use concerns. Id. at 465, 470. Indeed, courts have generally
disfavored substantive due process as a theory of constitutional redress, finding that
civil liability for a violation of substantive due process arises from “only the most
egregious official conduct . . . .” Cnty. of Sacramento v. Lewis, 523 U.S. 833, 846
(1998). As the First Circuit stated:
Substantive due process, as a theory of constitutional
redress, has in the past fifty years been disfavored, in part
because of its virtually standardless reach. To apply it to
claims like the present would be to insinuate the oversight
and discretion of federal judges into areas traditionally
reserved for state and local tribunals. Clearly, it is no
simple matter to decide what abuses to regard as abuses of
“substantive” due process. Every litigant is likely to
regard his own case as involving such an injustice. Thus,
we have consistently held that the due process clause may
not ordinarily be used to involve federal courts in the
rights and wrongs of local planning disputes. In the vast
majority of instances, local and state agencies and courts
are closer to the situation and better equipped to provide
relief. We have left the door slightly ajar for federal relief
in truly horrendous situations. But, this circuit’s
precedent makes clear that the threshold for establishing
the requisite “abuse of government power” is a high one
indeed.
Nestor Colon Medina & Sucesores, Inc. v. Custodio, 964 F.2d 32, 45 (1st Cir. 1992).
The court nevertheless finds that Plaintiff’s substantive due process
claim narrowly survives Defendants’ motion for summary judgment. Although the
court finds that Defendants’ actions were based at least partly on legitimate land use

21

concerns,10 the court also finds that the nature of the alleged conduct satisfies the
“shocks the conscience” standard because Plaintiff has adduced facts that, when
viewed in the light most favorable toward Plaintiff, suggest that Defendants exhibited
disparate treatment toward minority home owners as compared to similarly-situated
non-minority property owners. As stated above, Plaintiff identifies several other
property owners, by name and address, that she claims received pre-condemnation
notices and allowances for additional time to comply with condemnation orders,
which she herself did not receive. Additionally, she identifies eight other minority
property owners who also allegedly received disparate treatment. She claims that she
heard one of the Defendants state they will “get her back” and “I don’t like those
people” and mutter other racial epithets. The Third Circuit has found that conduct
that shocks the conscience includes corruption or self-dealing, interfering with a
constitutionally protected activity, or, most relevant here, bias against an ethnic
group. Pettus v. City of Phila., 2011 U.S. Dist. LEXIS 87525, *24 (E.D. Pa. Aug. 5,
2011) (citing Chainey v. Street, 523 F.3d 200, 220 (3d Cir. 2008) and Eichenlaub v.
Twp. of Indiana, 385 F.3d 274, 286 (3d Cir. 2004)); see also MARJAC, LLC v. Trenk,
380 F. App’x 142, 147 (3d Cir. 2010). Accordingly, the court rejects Defendants’
arguments that none of Plaintiff’s allegations rise to “conscience-shocking” levels.
Indeed, Plaintiff’s substantive due process claim is rooted in allegations that
Defendants’ actions demonstrated bias toward an ethnic group. While this situation
may be similar to Corneal in the sense that the record suggests that mixed motives
may have been driving Defendants’ actions, this case is distinguishable because the

10

The record shows that Plaintiff’s property was severely damaged by the fire rendering it a
health and safety hazard.
22

illegitimate motivations here are not merely allegations of “personal animus,” but
rather allegations of disparate treatment based on ethnic bias. It is clear that genuine
issues of fact remain regarding Defendants’ motives that cannot be resolved at this
stage of litigation. Viewing these facts in the light most favorable to Plaintiff, the
court is satisfied that Plaintiff has made a sufficient showing such that a reasonable
fact finder could find that Defendants’ actions constitute an arbitrary exercise of
power that deprived her of the enjoyment and use of her property. Summary
judgment will therefore be denied on this count.11
G.

Fourth Amendment Unreasonable Seizure

Plaintiff states that she “was forced to sell the property with[in] 60 days
at a submarket value because she did not feel that the Code Enforcement Officer
would be fair and impartial in his inspection of the property and would further
retaliate against her repeatedly by adding on additional items for compliance . . . .”
(Compl. ¶ 58.) Plaintiff further states that, as a result of Defendants’ “unreasonable
demands and the legal impositions that the property be completed in ‘fifteen days,’”
she was forced to sell her property. (Id. ¶ 72.) Plaintiff argues that the sale of her
property constitutes a “constructive seizure,” in violation of the Fourth Amendment.
(Id. ¶ 100.)
The Fourth Amendment provides that “[t]he right of the people to be
secure in their persons, houses, papers, and effects, against unreasonable searches and

11

Courts in this district have dismissed substantive due process claims where the plaintiff
also states an unlawful seizure in violation of a plaintiff’s Fourth Amendment rights, because the
substantive due process claim can be fully remedied under the Fourth Amendment. See Shrey v. Kontz,
2011 U.S. Dist. LEXIS 119434, *9 (M.D. Pa. Oct. 17, 2011). However, because the court will grant
summary judgment for Defendants in regard to the unreasonable seizure claim (see Part E, infra), the
substantive due process claim may proceed.
23

seizures, shall not be violated.” U.S. Const. Amend. IV. A “seizure” of property
occurs when there is some meaningful interference with an individual’s possessory
interests in that property. See Banks v. Gallagher, 2010 U.S. Dist. LEXIS 141544,
*44 (M.D. Pa. Dec. 13, 2010) (citing United States v. Jacobsen, 466 U.S. 109, 113
(1984)).
The Supreme Court has noted that “[f]rom the time of the founding to
the present, the word ‘seizure’ has meant a ‘taking possession.’” California v. Hodari
D., 499 U.S. 621, 624 (1991). Although caselaw on this topic has been somewhat
mixed, courts generally interpret a possessory interest in property to mean taking
physical possession. See, e.g., Arizona v. Hicks, 480 U.S. 321, 324 (1987); Hale v.
Hinkle, 201 U.S. 43, 76 (1906)(“[A] seizure contemplates a forcible dispossession of
the owner.”); see also Finley v. City of Phila., 2011 U.S. Dist. LEXIS 99057, *8
(E.D. Pa. Aug. 31, 2011). Here, Plaintiff never claims that her property was
physically seized by Defendants or that Defendants took the property pursuant to any
condemnation order. Rather, it is undisputed that Plaintiff sold12 her property based
on her personal belief that Defendants would be unfair during inspections. The court
finds that Plaintiff’s sale of her property does not constitute a “seizure” as
contemplated under the Fourth Amendment. Defendants never possessed, forcibly or
otherwise, Plaintiff’s property. Accordingly, the court will grant summary judgment
in favor of Defendants on this claim.
H.

Fifth Amendment Government Deprivation

12

Plaintiff’s claim that she “sold” her property appears dubious. Tax documents related
to the property indicate that the property was sold to “Professional Grade.” (Doc. 116-5.) A Delaware
Corporation Report indicates that DeLaine Andrews is the Registered Agent for Professional Grade.
(Doc. 116-6.)
24

Likewise, Plaintiff’s Fifth Amendment claim fails. The Fifth
Amendment proscribes the taking of property without just compensation. U.S.
Const. Amend. V. It is well-recognized that this prohibition applies to state and local
governments under the Fourteenth Amendment. See Cowell v. Palmer Twp., 263
F.3d 286, 290 (3d Cir. 2001)(citing Chicago, Burlington & Quincy R.R. Co. v. City of
Chi., 166 U.S. 226, 239 (1897)). However, “if a State provides an adequate
procedure for seeking just compensation, the property owner cannot claim a violation
of the [Takings] Clause until it has used the procedure and been denied
compensation.” Id. (citing Williamson Cnty. Reg’l Planning Comm’n v. Hamilton
Bank of Johnson, 473 U.S. 172, 195 (1985)).
Here, because Plaintiff voluntarily sold her property based on her belief
that Code Enforcement Officers would treat her unfairly, there does not appear to be
a “taking” within the meaning of the Fifth Amendment. At most, Plaintiff’s claim of
a “constructive seizure” may be interpreted as a “regulatory taking” because the
enforcement of housing codes diminished the value of her house. However, a
regulatory taking occurs only when the government’s action deprives a landowner of
all economically viable uses of his or her property. Lucas v. South Carolina Coastal
Council, 505 U.S. 1003, 1019 (1992); Cowell, 263 F.3d at 291. Plaintiff sold her
property for some amount less than $10,000, indicating that her property did not
loose all value. (SMF ¶ 49; Doc. 116-1, Andrews Dep., p. 152.) Moreover, Plaintiff
does not even allege, or set forth any evidence whatsoever that she attempted to use
Pennsylvania’s procedures to request just compensation but was denied.13
13

Under Pennsylvania law, a landowner may file a petition requesting the appointment of
viewers to declare a taking and ascertain just compensation. See 26 Pa. C.S. § 502. If the landowner is
(continued...)
25

Accordingly, this claim must fail and summary judgment will be granted for
Defendants.
I.

Qualified Immunity

Defendants argue that they are entitled to qualified immunity because
nothing about the condemnation order or the citations to Plaintiff’s property violated
a constitutional right. Defendants reason that because the Dauphin Count Court of
Common Pleas has already found the terms of the condemnation order and citations
to be to reasonable, no constitutional violations could have occurred. The court
disagrees.
When, as is the case here, a government official’s actions give rise to a
§ 1983 claim, the privilege of qualified immunity, in certain circumstances, can serve
as a shield from suit. See Hunter v. Bryant, 502 U.S. 224, 227 (1991). The primary
purpose of affording public officials the privilege of qualified immunity, thus
insulating them from suit, is to protect them “from undue interference with their
duties and from potentially disabling threats of liability.” Elder v. Holloway, 510
U.S. 510, 514 (1994) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 806 (1982)). The
privilege of qualified immunity, however, can be overcome when state officials
violate “clearly established statutory or constitutional rights of which a reasonable
person would have known.” Harlow, 457 U.S. at 818. The Supreme Court, in
Saucier v. Katz, explained the analytical process for determining when the privilege
of qualified immunity has been overcome:

13

(...continued)
successful, then s/he may also be awarded reasonable appraisal, attorney, engineering, and other costs
incurred. See 26 Pa. C.S. § 709.
26

A court required to rule upon the qualified immunity issue
must consider, then, this threshold question: Taken in the
light most favorable to the party asserting the injury, do
the facts alleged show the officer’s conduct violated a
constitutional right? This must be the initial inquiry. . . .
If no constitutional right would have been violated were
the allegations established, there is no necessity for further
inquiries concerning qualified immunity. On the other
hand, if a violation could be made out on a favorable view
of the parties’ submissions, the next, sequential step is to
ask whether the right was clearly established.
533 U.S. 194, 201 (2001) (citation omitted). Although the Supreme Court announced
that Saucier’s two-step protocol is not mandatory, courts have the discretion to
decide whether that procedure is worthwhile in particular cases. Pearson v.
Callahan, 555 U.S. 223, 240 (2009).
When immunity is raised at the summary judgment stage, the court’s
analysis of the merits of the claims for purposes of summary judgment essentially
merges with its analysis of the existence of a deprivation of federal rights for
purposes of immunity. See Gruenke v. Seip, 225 F.3d 290, 299-300 (3d Cir. 2000);
Russoli v. Salisbury Twp., 126 F. Supp. 2d 821, 838-41 (E.D. Pa. 2000); see also
Grant v. City of Pittsburgh, 98 F.3d 116, 122 (3d Cir.1996) (“[C]rucial to the
resolution of [the] assertion of qualified immunity is a careful examination of the
record . . . to establish . . . a detailed factual description of the actions of each
individual defendant (viewed in a light most favorable to the plaintiff).”).
The court has already found that Plaintiff has submitted sufficient
evidence to demonstrate violations of her rights to equal protection and substantive
due process at this stage of the litigation. The remaining question is whether the
rights asserted by Plaintiff were well-established such that a reasonable officer of the
state would have known they were violating Plaintiff’s rights. Defendants miss the
27

mark by arguing that the Court of Common Pleas’ finding that the terms of the
condemnation order were reasonable demonstrates that the actions of the Defendants
were reasonable. The pertinent question is not the reasonableness of the terms of the
order itself, but rather the likelihood that a reasonable officer of the state would be
aware that he or she is violating Plaintiff’s rights. Plaintiff claims that Defendants’
actions violated her right of possession, ownership and use and enjoyment of
property, interests that are protected by substantive due process. The Third Circuit
has long since recognized that these interests are protected by due process. See, e.g.,
Wrench , 340 F. App’x at 816. Thus, a reasonable law enforcement officer who
interferes with this right on the basis of racial discrimination should know that his or
her conduct “shocks the conscience.” Likewise, it is well-established that “preferring
members of any one group for no reason other than race . . . is discrimination for its
own sake” and is forbidden by the Fourteenth Amendment and there is a clearly
established right to equal protection. Regents of the Univ. of Cal. v. Bakke, 438 U.S.
265, 307 (1978); Mitchum v. Foster, 407 U.S. 225, 238 (1972). The contours of the
Fourteenth Amendment were sufficiently clear at the time Defendants’ alleged acts
took place such that a reasonable official would have known, or should have known,
that discriminating against someone who is African-American in the context of
condemnation proceedings violated these rights. There is still some uncertainty
regarding facts that may establish Defendants’ motives in their handling of Plaintiffs’
condemnation proceedings. Accordingly, Defendants’ motion will be denied on the
basis of qualified immunity.14
14

As to Plaintiff’s Fifth Amendment government deprivation and Fourth Amendment
unreasonable seizure claims, because the court finds that no constitutional right has been violated, the
(continued...)
28

IV.

Conclusion
Based on the foregoing, the court will grant in part and deny in part

Defendants’ motion for summary judgment. The motion will be granted in full as to
Defendant Bureau of Codes because Plaintiff failed to adduced evidence or even
allege that the Bureau or City of Harrisburg itself has purposefully violated Plaintiff’s
constitutional rights pursuant to some established policy or custom. The court will
also grant the motion with regard to Plaintiff’s Fourth Amendment unreasonable
seizure and Fifth Amendment government deprivation claims because Plaintiff sold
her property and therefore did not suffer a deprivation or seizure sufficient to state a
Constitutional violation. The court will deny the motion with regard Plaintiff’s equal
protection and substantive due process claims because Plaintiff has sufficiently
demonstrated that genuine issues of material fact remain and, resolving those facts in
favor of Plaintiff, a reasonable jury could find a violation of Plaintiff’s rights to equal
protection and substantive due process.

14

(...continued)
court need not reach the issue of whether the individual defendants met their burden to establish
qualified immunity. See Gannaway v. Karetas, 438 F. App’x 61, 67 (3d Cir. 2011) (“As there was no
constitutional violation, we need not engage in an analysis of qualified immunity.”). Regarding the
remainder of Plaintiff’s claims, because Defendants did not move for summary judgment on those
claims with specificity, the court is unable to decide this issue with regard to those claims.

29

An appropriate order will be issued.

s/Sylvia H. Rambo
United States District Judge
Dated: February 24, 2012.

30

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

DELAINE ANDREWS,
Plaintiff
v.
BUREAU OF CODES
ADMINISTRATIVE OFFICE, et al.,
Defendants

:
:
:
:
:
:
:
:
:
:

Civil No. 1:08-CV-1669
JUDGE SYLVIA H. RAMBO

ORDER
In accordance with the accompanying memorandum, it is HEREBY
ORDERED that:
(1) Defendants’ motion for summary judgment (Doc. 115) is
GRANTED in part and DENIED in part as follows:
(A) The motion is GRANTED in all respects as to Defendant
Bureau of Codes;
(B) The motion is GRANTED in all respects as to Defendant
David Patton;
(C) The motion is GRANTED as to Plaintiff’s Fourth
Amendment unreasonable seizure and Fifth Amendment government
deprivation claims;
(D) The motion is DENIED as to Plaintiffs’ Fourth Amendment
Equal Protection and Fourteenth Amendment Substantive Due Process
claims.

(2) Pursuant to footnote four in the accompanying memorandum,
Plaintiff’s Fourteenth Amendment Procedural Due Process claim is DISMISSED.
(3) The clerk of court shall defer the entry of judgment until after trial
in this matter.
(4) The court will issue a separate order setting forth the remaining
case management deadlines for the balance of the case, including a trial date .

s/Sylvia H. Rambo
United States District Judge
Dated: February 24, 2012.

2