Infantino v. West Wyoming Borough et al

Filing 40

MEMORANDUM (Order to follow as separate docket entry).Signed by Honorable Malachy E Mannion on 7/31/13. (bs)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF PENNSYLVANIA
SALVATORE J. INFANTINO,
Plaintiff

:
:
CIVIL ACTION NO. 3:12-2539
:

v.
:
WEST WYOMING BOROUGH and
THOMAS J. ROCCOGRANDI,

:

Defendants

(JUDGE MANNION)

:
MEMORANDUM

Presently before the court are motions to dismiss filed by Defendant
West Wyoming Borough, (Doc. No. 7), and Defendant Thomas J.
Roccograndi, (Doc. No. 31). The plaintiff brings his complaint pursuant to 42
U.S.C. §1983 and alleges violations of his constitutional rights related to the
search of his property by a code enforcement officer. The plaintiff has failed
to plead claims for First, Fifth and Fourteenth Amendment violations and,
therefore, those claims will be dismissed. Similarly, the plaintiff’s claim of a
unreasonable seizure will be dismissed; however, the plaintiff has established
a prima facie case of a violation of the Fourth Amendment as the result of an
unreasonable search.

I.

FACTUAL BACKGROUND
The plaintiff alleges that Defendant Roccograndi, a code enforcement

officer for Defendant West Wyoming Borough (hereinafter the “Borough”),
illegally entered and took pictures of the plaintiff’s property. (Doc. No. 1). The

plaintiff alleges that on or about May 31, 2011, Defendant Roccograndi
arrived at the plaintiff’s residence without notice. (Id. at ¶9). The plaintiff’s son
notified the plaintiff via telephone and the plaintiff told Defendant Roccograndi
not to enter his property. (Id. at ¶10). Defendant Roccograndi allegedly
responded “I have authority to do whatever I want” and proceeded to jump
over the plaintiff’s fence and take pictures of the property. (Id. at ¶¶10-12).
Upon reviewing surveillance videotapes of the property, the plaintiff alleges
that Defendant Roccograndi also entered the property on a prior occasion
without permission. (Id. at ¶14). The plaintiff further alleges that the Borough
either directed or allowed Defendant Roccograndi to enter private properties
regardless of the owner’s consent. (Id. at ¶15).
The plaintiff brings his claims pursuant to 42 U.S.C. §1983 and alleges
violations of his First, Fourth, Fifth and Fourteenth Amendment rights. (Id. at
¶6). The plaintiff’s complaint contains two formal counts. The first is titled:
“Violation of Due Process Rights Unlawful Search and Seizure” and alleges
that Defendant Roccograndi “unreasonably searched[ed] Plaintiff’s property
and seize[d] images of Plaintiff’s private property.” (Id. at ¶15). The second
count alleges that Defendant Roccograndi retaliated against the plaintiff for
exercising his First Amendment rights by entering the property after the
plaintiff told him not to do so. (Id. at ¶17). The plaintiff also alleges violations
of his Fifth Amendment rights but does not offer specific factual support. (Id.
at ¶¶2,6).

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II.

PROCEDURAL HISTORY
The plaintiff filed his complaint on December 19, 2012, (Doc. No. 1). On

January 9, 2013, the Borough filed its motion to dismiss, (Doc. No. 7),
followed by a brief in support, (Doc. No. 8), on January 23, 2013. After an
extension of time was granted, the Plaintiff filed a brief in opposition on
February 28, 2013, (Doc. No. 11). The Borough filed a brief in reply on March
15, 2013, (Doc. No. 19).
On March 1, 2013, Defendant Roccograndi filed his first motion to
dismiss for insufficient process and for failure to state a claim, (Doc. No. 13).
On the same date, the plaintiff filed a motion for consideration of default
against Defendant Roccograndi, (Doc. No. 15), alleging that he had failed to
respond to the complaint. The plaintiff also filed a motion to strike the
Defendant Roccograndi’s motion to dismiss, (Doc. No. 16). Following a
telephone conference held on March 28, 2013 the plaintiff filed a motion to
withdraw the motions for default and to strike the defendant’s motion to
dismiss, (Doc. No. 29), and Defendant Roccograndi filed a motion to withdraw
his motion to dismiss, (Doc. No. 30).
Defendant Roccograndi then filed the instant motion to dismiss for
failure to state a claim, (Doc. No. 31). On April 11, 2013, Defendant
Roccograndi filed a brief in support of the instant motion to dismiss, (Doc. No.
37). On April 24, 2013, the plaintiff filed a brief in opposition, (Doc. No. 38).
On May 8, 2013, Defendant Roccograndi filed a brief in reply, (Doc. No. 39).
Therefore, both the motion to dismiss filed by the Borough, (Doc. No.
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7), and the second motion to dismiss filed by Defendant Roccograndi, (Doc.
No. 31), are fully briefed and ripe for review at this time.

III.

STANDARD OF REVIEW
The defendants’ motion to dismiss is brought pursuant to the provisions

of Fed.R.Civ.P. 12(b)(6). This rule provides for the dismissal of a complaint,
in whole or in part, if the plaintiff fails to state a claim upon which relief can be
granted. The moving party bears the burden of showing that no claim has
been stated, Hedges v. United States, 404 F.3d 744, 750 (3d Cir. 2005), and
dismissal is appropriate only if, accepting all of the facts alleged in the
complaint as true, the plaintiff has failed to plead “enough facts to state a
claim to relief that is plausible on its face,” Bell Atlantic Corp. v. Twombly, 550
U.S. 544, 127 S. Ct. 1955, 1974 (2007) (abrogating “no set of facts” language
found in Conley v. Gibson, 355 U.S. 41, 45-46 (1957)). The facts alleged must
be sufficient to “raise a right to relief above the speculative level.” Twombly,
550 U.S. 544, 127 S. Ct. at 1965. This requirement “calls for enough fact[s]
to raise a reasonable expectation that discovery will reveal evidence of”
necessary elements of the plaintiff’s cause of action. Id. Furthermore, in order
satisfy federal pleading requirements, the plaintiff must “provide the grounds
of his entitlement to relief,” which “requires more than labels and conclusions,
and a formulaic recitation of the elements of a cause of action will not do.”
Phillips v. County of Allegheny, 515 F.3d 224, 231 (3d Cir. 2008) (brackets
and quotations marks omitted) (quoting Twombly, 550 U.S. 544, 127 S. Ct.
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at 1964-65).
In considering a motion to dismiss, the court generally relies on the
complaint, attached exhibits, and matters of public record. See Sands v.
McCormick, 502 F.3d 263 (3d Cir. 2007). The court may also consider
“undisputedly authentic document[s] that a defendant attaches as an exhibit
to a motion to dismiss if the plaintiff’s claims are based on the [attached]
documents.” Pension Benefit Guar. Corp. v. White Consol. Indus., 998 F.2d
1192, 1196 (3d Cir. 1993). Moreover, “documents whose contents are alleged
in the complaint and whose authenticity no party questions, but which are not
physically attached to the pleading, may be considered.” Pryor v. Nat’l
Collegiate Athletic Ass’n, 288 F.3d 548, 560 (3d Cir. 2002). However, the
court may not rely on other parts of the record in determining a motion to
dismiss. See Jordan v. Fox, Rothschild, O’Brien & Frankel, 20 F.3d 1250,
1261 (3d Cir. 1994).
Generally, the court should grant leave to amend a complaint before
dismissing it as merely deficient. See, e.g., Fletcher-Harlee Corp. v. Pote
Concrete Contractors, Inc., 482 F.3d 247, 252 (3d Cir. 2007); Grayson v.
Mayview State Hosp., 293 F.3d 103, 108 (3d Cir. 2002); Shane v. Fauver,
213 F.3d 113, 116-17 (3d Cir. 2000). “Dismissal without leave to amend is
justified only on the grounds of bad faith, undue delay, prejudice, or futility.”
Alston v. Parker, 363 F.3d 229, 236 (3d Cir. 2004).

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IV.

DISCUSSION
The two motions pending before the court share many of the same

arguments and, as such, will be treated together to the extent possible. With
respect to the First Amendment claim, each defendant argues that the plaintiff
did not engage in protected activity on which to base a claim and alternatively
that the plaintiff has failed to demonstrate a necessary causal link between
the speech and the allegedly retaliatory act. (Doc. No. 8 at 5-7; Doc. No. 37
at 5-9). With respect to the plaintiff’s Fourth Amendment claim, each
defendant argues that no seizure in fact occurred and the Borough
additionally argues that the plaintiff has failed to make out a claim for Monell
liability. (Doc. No. 8 at 7-9; Doc. No. 37 at 9-10). With respect to the Fifth
Amendment claim, the Borough argues that no taking occurred while
Defendant Roccograndi’s later-filed motion notes that the plaintiff appears to
have withdrawn the Fifth Amendment claim in responding to the Borough’s
motion. (Doc. No. 8 at 9-10; Doc. No. 37 at 10-11). Finally, with respect to the
Fourteenth Amendment claim, both defendants argue that no action taken by
the defendants would “shock the conscience” and that no claim for a
procedural due process violation has been pled. (Doc. No. 8 at 10-12; Doc.
No. 37 at 11-13; Doc. No. 39 at 2-3). The court will address each of the claims
in turn.
A. First Amendment Retaliation
The plaintiff alleges that Defendant Roccograndi retaliated against the
plaintiff after the plaintiff challenged his authority to enter the property.
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Specifically, the plaintiff alleges that, “[he] as a citizen spoke out against
Defendant Roccograndi violating the law by unlawfully entering a citizen’s
private property” and that “in retaliation and direct defiance Defendant
Roccograndi did as he threatened he would (i.e. ‘whatever he wanted’) and
unlawfully entered Plaintiff’s private property.” (Doc. No. 1 ¶ 17). To establish
a claim for First Amendment retaliation, a plaintiff must demonstrate that he:
“(1) engaged in constitutionally protected speech; (2) was subjected to
adverse action or deprived of some benefit; and (3) his protected speech was
a ‘substantial’ or ‘motivating factor’ in the adverse action.” Billman v. Corbett,
2011 WL 605814 (E.D. Pa. Feb. 15, 2011) (citing Mt. Healthy City Sch. Dist.
Bd. of Educ. v. Doyle, 429 U.S. 274, 97 S.Ct. 568, 50 L.Ed.2d 471 (1977))).
Although the parties argue at length as to whether the plaintiff’s reprimand of
Defendant Roccograndi’s conduct is protected speech, the count finds a far
more apparent failure in the causation element of the plaintiff’s claim.
Regardless of whether the speech is protected, the facts contained in the
plaintiff’s complaint fail to demonstrate that the plaintiff’s verbal resistance to
the search brought about the search itself.
The plaintiff argues that the causal relationship is demonstrated by the
fact that Defendant Roccograndi entered the property moments after the
plaintiff instructed him not to do so. The Third Circuit Court of Appeals has
held that a plaintiff can establish the requisite causal connection by proving
either: “(1) an unusually suggestive temporal proximity between the protected
activity and the allegedly retaliatory action, or (2) a pattern of antagonism
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coupled with timing to establish a causal link.” Lauren W. ex rel. Jean W. v.
DeFlaminis, 480 F.3d 259, 267 (3d Cir. 2007)(citing Krouse v. American
Sterilizer Co., 126 F.3d 494, 503-4 (3d Cir.1997); Woodson v. Scott Paper
Co., 109 F.3d 913, 920-21 (3d Cir.1997)). The Third Circuit has cautioned,
however, that “[i]t is important to emphasize that it is causation, not temporal
proximity itself, that is an element of plaintiff's prima facie case, and temporal
proximity merely provides an evidentiary basis from which an inference can
be drawn.” Kachmar v. SunGard Data Sys., Inc., 109 F.3d 173, 178 (3d
Cir.1997); see also Marra, 497 F.3d at 302. Here, the plaintiff relies on this
temporal connection between his statement to Defendant Roocograndi and
the allegedly illegal search, but ignores the broader time line events which
critically undercuts any possible causal inference.
The plaintiff asserts that review of his surveillance tapes revealed that
Defendant Roccograndi had entered is property at least once time prior to the
May 31, 2011 incident. (Doc. No. 1 at ¶14). The plaintiff also argues that the
Borough “directed and/or allowed” Roccograndi to enter and search properties
as part of his employment as a code enforcement officer. (Id. at ¶¶3-4,15). In
addition, all of the plaintiff’s and his son’s interactions with Defendant
Roccograndi

referenced

in

the

complaint

focused

on

Defendant

Roccograndi’s apparent intention to enter the property, which the plaintiff
opposed. (Id. at ¶¶10-11). Although the plaintiff does not make any specific
allegations as to the reason Defendant Roccograndi arrived at his property on
May 31, 2011, the plaintiff’s other allegations support a logical conclusion that
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Defendant Roccograndi planned to search the plaintiff’s property. The plaintiff
has failed to demonstrate that his verbalized disapproval of the search in any
way altered Defendant Roccograndi’s conduct as it is apparent from the
plaintiff’s allegations that it was Defendant Roccograndi’s job to conduct
searches of properties for code violations. In light of the evidence indicating
that the Defendant Roccograndi intended to search the property from the
outset, the mere temporal relation between the plaintiff’s castigation of
Defendant Roccograndi and his entrance onto the property is not sufficient to
establish a causal relationship. As there is no proof that the plaintiff’s speech
was a ‘substantial’ or ‘motivating factor’ in Defendant Roccograndi’s decision
to search the property, the plaintiff cannot sustain a First Amendment
retaliation claim against either defendant regardless of whether the speech
was protected. Therefore the plaintiffs First Amendment claim will be
dismissed as to both defendants.
B. Fourth Amendment
i. Search
The Fourth Amendment protects “[t]he right of the people to be secure
in their persons, houses, papers and effects against unreasonable searches
and seizures.” U.S. Const. amend. IV. The Third Circuit has explained that
there are two ways in which government conduct can be considered a search
for Fourth Amendment purposes. “First, a Fourth Amendment search occurs
when the person invoking its protection can claim a justifiable, a reasonable,
or a legitimate expectation of privacy that has been invaded by government
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action.” Free Speech Coal., Inc. v. Attorney Gen. of U.S., 677 F.3d 519, 543
(3d Cir. 2012)(citing Smith v. Maryland, 442 U.S. 735, 740, 99 S.Ct. 2577, 61
L.Ed.2d 220 (1979))(internal quotations omitted). “Second, as the Supreme
Court’s recent decision in Jones makes clear, a Fourth Amendment search
also occurs where the government unlawfully, physically occupies private
property for the purpose of obtaining information.” Id. (citing United States v.
Jones, 132 S. Ct. 945, 181 L. Ed. 2d 911 (2012)).
The plaintiff alleges that Defendant Roccograndi jumped over a fence
and searched the plaintiff’s property. (Doc. No. 1 at ¶11). The plaintiff further
alleges that Defendant Roccograndi presented no warrant or other grounds
authorizing the search and that the plaintiff did not consent to the search. (Id.
at ¶¶10-12). At this stage in the proceeding, the plaintiff has sufficiently
alleged that a search occurred as Defendant Roccograndi is alleged to have
entered and occupied the plaintiff’s property for the purpose of obtaining
information. As such, both motions will be denied to the extent that they argue
that the plaintiff has failed to establish an unreasonable search claim.
ii. Seizure
The plaintiff has not pled sufficient facts to support a claim of
unreasonable seizure under the Fourth Amendment. As discussed above, the
plaintiff has satisfactorily alleged an unreasonable search; however, the
complaint contains no allegation of property seized. The plaintiff alleges both
an unreasonable search of the plaintiff’s property and a seizure of “images of
Plaintiff’s private property.” (Doc. No. 1 at ¶15). The defendants contend that
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absent any allegation that Defendant Roccograndi “took possession” of any
of the plaintiff’s property there has been no seizure. (Doc. No. 37 at 9-10).
The court agrees. The plaintiff has put forth no case law to support a Fourth
Amendment seizure claim based solely on the “seizure” of images and the
court has found no support for the proposition in its own research. In his briefs
in opposition to the respective motions to dismiss, however, the plaintiff
appears to withdraw these claims when he states that he “has not alleged that
Defendant Roccograndi’s [sic] ‘seized’ his property.” (Doc. No. 11 at 5; Doc.
No. 38 at 11).The court construes the plaintiff’s admissions in its briefs to be
a withdraw of the Fourth Amendment seizure claim, but would find dismissal
to be appropriate were they not withdrawn because there is no allegation that
Defendant Roccograndi took possession of the plaintiff’s person or property.

iii. Monell Liability
It is well established that “a municipality cannot be held liable solely
because it employs a tortfeasor – or, in other words, a municipality cannot be
held liable under §1983 on a respondeat superior theory.” Monell v. Dep't of
Soc. Services of City of New York, 436 U.S. 658, 691 (1978); Grayson v.
Mayview State Hosp., 293 F.3d 103 (3d Cir. 2002). Therefore, for a municipal
defendant “can only be liable when the alleged constitutional violation
implements or executes a policy, regulation or decision officially adopted by
the governing body or informally adopted by custom.” Para v. City of
Scranton, 2008 WL 2705538, *17 (M.D. Pa. July 10, 2008) (citing Monell, 436
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U.S. at 694). Moreover, “[t]o establish that a policy is in violation of the
constitution, a single incident by a municipal employee is insufficient to
establish that an official custom or practice caused the alleged constitutional
violation.” Para, 2008 WL 2705538, at *19 (citing Oklahoma City v. Tuttle, 471
U.S. 808, 822, 105 S.Ct. 2427, 85 L.Ed.2d 791 (1985)).
The plaintiff has alleged that Defendant Roccograndi did not possess
a warrant to search the plaintiff’s property but, regardless, believed he had the
authority to conduct a search as a code enforcement officer on behalf of the
Borough. Moreover, the plaintiff has alleged that the Borough either directed
or allowed Defendant Roccograndi to enter the plaintiff’s property on or about
May 31, 2011 as well as at a earlier point in time. At this stage, the court finds
that discovery is necessary to determine what legal authority Defendant
Roccograndi had to search the property and whether any Borough policies or
practices augmented that authority. As such, the Borough’s motion to dismiss
will be denied with respect to possible Monell liability related to the plaintiff’s
alleged Fourth Amendment unreasonable search claim.
C. Fifth Amendment
At two points in his complaint, the plaintiff alleges violations of the Fifth
Amendment. (Doc. No. 1 ¶¶ 2, 6). Nevertheless, his brief in opposition to the
Borough’s motion to dismiss states that the defendants “argue against a
takings claim; however, Plaintiff has not presented such claim, and therefore,
the Defendants arguments are misplaced...” (Doc. No. 11 at note 1). The
court agrees with both parties that the plaintiff has not raised a Fifth
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Amendment taking claim. See Jones v. Philadelphia Police Dep’t, 57 F. App’x
939, 942 (3d Cir. 2003)(finding “invasion” during search sounded in trespass
and did not interfere with traditional property ownership so as to implicate
eminent domain). To the extent the plaintiff may have sought to bring a due
process claim under the Fifth Amendment, such a claim would fail because
the defendants are state officials. See Kelly v. Borough of Sayreville, N.J.,
107 F.3d 1073, 1076 (3d Cir. 1997) (due process claim against state official
is analyzed under the Fourteenth, rather than the Fifth, Amendment); Jones
v. City of Jackson, 203 F.3d 875, 880 (5th Cir. 2000). As such, all claims
arising under the Fifth Amendment against both defendants will be dismissed.

D. Fourteenth Amendment
I. Substantive Due Process
The plaintiff argues that Defendant Roccograndi’s entry onto the
property over the plaintiff’s objections violated his right to substantive due
process under the Fourteenth Amendment. The court finds that the plaintiff
has failed to plead any conduct to support such a claim. “The substantive
protections of the Due Process Clause apply in an extremely narrow range of
circumstances, when the conduct at issue is so irrational as to ‘shock the
conscience.’” Johnston v. Dauphin Borough, 2006 WL 1410766 (M.D. Pa.
May 22, 2006) (citing United Artists Theatre Circuit, Inc. v. Twp. of
Warrington, 316 F.3d 392, 402 (3d Cir.2003)). Substantive due process
protects against “only those activities that have no reasonable relation to
13

legitimate government objectives.” Id. As the Third Circuit has stated, “the
threshold question is whether the behavior of the governmental officer is so
egregious, so outrageous, that it may fairly be said to shock the contemporary
conscience.” Kaucher v. Cnty. of Bucks, 455 F.3d 418, 425 (3d Cir.
2006)(quoting County of Sacramento v. Lewis, 523 U.S. 833, 847, 118 S.Ct.
1708, 140 L.Ed.2d 1043 (1998)).
The conduct alleged in the plaintiff’s complaint is simply not so
egregious or irrational so as to “shock the conscience.” Defendant
Roccograndi, whom the parties do not dispute is a code enforcement officer
acting on behalf of the Borough, believed he had the authority to inspect the
plaintiff’s property as part of the duties of his position. The plaintiff has
separately alleged that Defendant Roccograndi did not have authority to
search the property and, as such, the search violated his rights under the
Fourth Amendment. Defendant Roccograndi’s search of the property for code
violations, even if it is ultimately found to be improper, unquestionably had a
legitimate government objective and therefore does not shock the conscience
of the court. This legitimate government objective is not eviscerated by
Defendant Roccograndi’s decision to proceed with his survey over the
plaintiff’s objection. In sum, the conduct described in the plaintiff’s complaint
may support a claim for an unreasonable search, at this stage in the
proceeding, but the conduct does not fall into the narrow category of cases
contemplated by the Substantive Due Process Clause of the Fourteenth
Amendment and any such claims will be dismissed.
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ii. Procedural Due Process
Count I of the plaintiff’s complaint brings a combined claim for unlawful
search and seizure and violation of his due process rights. Although the
plaintiff does not specify whether he is alleging that his substantive or
procedural due process rights were violated, the facts alleged sound, if at all,
in substantive due process. In a footnote to the defendant’s brief in opposition
to Defendant Roccograndi’s motion to dismiss, the plaintiff first argues that
the complaint also contains a procedural due process claim. (Doc. No. 38 at
14, note 1). Defendant Roccograndi argues that plaintiff failed to present facts
in the complaint sufficient to notify the defendants of a procedural due
process claim and, similarly, that the complaint fails to state a proper
procedural due process claim. The court agrees.
To succeed on a procedural due process claim, a plaintiff must
establish: “(1) that it was deprived of an individual interest that is
encompassed within the Fourteenth Amendment's protection of life, liberty
and property, and (2) that the procedures available to it did not provide due
process of law. Nat'l Amusements Inc. v. Borough of Palmyra, 716 F.3d 57,
62 (3d Cir. 2013) (citing Schmidt v. Creedon, 639 F.3d 587, 595 (3d
Cir.2011)). To support his purported procedural due process claim, the
plaintiff offers only the facts related to the alleged search of the plaintiff’s
property. The plaintiff has failed to plead any facts related to the procedures
available or how such procedures violated due process. Therefore, the
plaintiff has failed to establish a prima facie case for a violation of procedural
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due process.
Finally, the court must note the lack of clarity in the claims presented in
the plaintiff’s complaint. As discussed above, the plaintiff’s briefs in opposition
flatly denied raising both the Fifth Amendment claims and the Fourth
Amendment seizure claims despite clearly asserting constitutional violations
under those provisions in the complaint. The plaintiff also used a footnote in
his brief in opposition to raise a procedural due process claim that is in no
way supported by the facts of the complaint. Counsel should take care to
ensure that claims are neither raised inadvertently nor raised in filings other
than the complaint. Such conduct wastes the time and resources of opposing
counsel and of this court.

V.

CONCLUSION
In sum, the plaintiff has failed to state claims under the First, Fifth and

Fourteenth Amendment. The plaintiff has established a prima facie case for
an unreasonable search under the Fourth Amendment with regard to both
defendants, but has failed to state a claim for an unreasonable seizure. An
appropriate order will follow.

s/ Malachy E. Mannion
MALACHY E. MANNION
United States District Judge
DATED: July 31, 2013
O:\Mannion\shared\MEMORANDA - DJ\2012 MEMORANDA\12-2539-02.wpd

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