Postie v. Frederick et al
Filing
28
MEMORANDUM (Order to follow as separate docket entry).Signed by Honorable Malachy E Mannion on 3/17/15. (Attachments: # 1 Unpublished Opinion(s), # 2 Unpublished Opinion(s), # 3 Unpublished Opinion(s), # 4 Unpublished Opinion(s))(bs)
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Only the Westlaw citation is currently available.
United States District Court,
M.D. Pennsylvania.
Tyler HAMMOND and Antonia Hammond, Plaintiffs,
v.
CITY OF WILKES–BARRE, et al., Defendants.
Civil Action No. 3:09–cv–2310.
Aug. 14, 2012.
Cynthia L. Pollick, The Employment Law Firm, Pittston,
PA, for Plaintiffs.
John G. Dean, Elliott Greenleaf & Dean, Scranton, PA,
Mark W. Bufalino, Matthew John Carmody, Elliott
Greenleaf & Dean, Thomas F. Ford, Smith, Ford &
Associates, P.C., Wilkes-Barre, PA, for Defendants.
MEMORANDUM
A. RICHARD CAPUTO, District Judge.
*1 Presently before the Court is the Report and
Recommendation of Magistrate Judge Mildred E. Methvin
(Doc. 61), recommending that the Defendants' motions to
dismiss (Docs. 39 & 56) be granted. For the reasons
below, the Report and Recommendation will be adopted
in part and rejected in part.
BACKGROUND
This action was originally filed on November 24,
2009 and was dismissed and closed in a March 30, 2011
Memorandum and Order. Hammond v. City of
Wilkes–Barre, 3:09–CV–2310, 2011 WL 1257844
(M.D.Pa. Mar.30, 2011). Thereafter, on August 15, 2011,
a motion to reopen was granted and an amended complaint
was filed. (Doc. 38.)
In the Amended Complaint, the plaintiffs allege the
following. Plaintiffs Tyler and Antonia Hammond are
husband and wife. In August of 2009, the Hammonds
sought information on a property they were interested in
purchasing, known as the “Old River Road Bakery.” The
Defendant City of Wilkes–Barre responded that “there
were no plans for one of the properties that the
Hammond's [sic] were interested in purchasing.” (Id. at ¶
16.) While these properties were scheduled for a tax sale
on September 16, 2009, the “Defendants, with full
knowledge that the City did not owe [sic] the property in
question, had property Old River Road Bakery ... removed
from the Luzerne County Take Sale List.” (Id. at ¶ 18.)
Further, on approximately September 1, 2009,
Defendant Leo Glodzik, III, an agent of the Defendant
City of Wilkes–Barre, “came on the property that the City
did not own and destroyed Plaintiffs' personal property as
well as built a fence, that encroaches on Plaintiffs'
property.” (Id. at ¶ 1.) This action was “directed and/or
allowed” by the other Defendants: the City of
Wilkes–Barre, Mayor Thomas M. Leighton, and City
Assistant Attorney William E. Vinsko, Jr. (Id. at ¶¶
21–23.) In the process, Hammond suffered damages to his
“trees, garden, and personal items.” (Id. at ¶ 21.)
In response to these events, the Plaintiffs have
brought claims in their Amended Complaint under 42
U.S.C. § 1983 for violations of their rights under the
Fourth, Fifth, and Fourteenth Amendments, as well as
state-law claims for misrepresentation and interference
with contract. In a May 14, 2012 Report and
Recommendation, Magistrate Judge Mildred E. Methvin
recommended that the motions to dismiss be granted and
that the Court decline to exercise supplemental jurisdiction
over the remaining state-law claims. The Plaintiffs timely
objected. These objections will now be evaluated below.
DISCUSSION
I. Legal Standard for Reviewing a Report and
Recommendation
Where objections to the Magistrate Judge's report are
filed, the court must conduct a de novo review of the
contested portions of the report, Sample v. Diecks, 885
F.2d 1099, 1106 n. 3 (3d Cir.1989) (citing 28 U.S.C. §
636(b)(1)(c)), provided the objections are both timely and
specific, Goney v. Clark, 749 F.2d 5, 6–7 (3d Cir.1984).
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In making its de novo review, the court may accept, reject,
or modify, in whole or in part, the factual findings or legal
conclusions of the magistrate judge. See 28 U.S.C. §
636(b)(1); Owens v. Beard, 829 F.Supp. 736, 738
(M.D.Pa.1993). Although the review is de novo, the
statute permits the court to rely on the recommendations
of the magistrate judge to the extent it deems proper. See
United States v. Raddatz, 447 U.S. 667, 675–76, 100 S.Ct.
2406, 65 L.Ed.2d 424 (1980); Goney, 749 F.2d at 7; Ball
v. United States Parole Comm'n, 849 F.Supp. 328, 330
(M.D.Pa.1994). Uncontested portions of the report may be
reviewed at a standard determined by the district court.
See Thomas v. Arn, 474 U.S. 140, 154, 106 S.Ct. 466, 88
L.Ed.2d 435 (1985); Goney, 749 F.2d at 7. At the very
least, the court should review uncontested portions for
clear error or manifest injustice. See, e.g., Cruz v. Chater,
990 F.Supp. 375, 376–77 (M.D.Pa.1998). As such, the
Court reviews the portions of the Report and
Recommendation to which the Petitioner objects de novo.
The remainder of the Report and Recommendation is
reviewed for clear error.
II. Analysis
A. Count I: Pennsylvania's Right–to–Know Law
*2 The Plaintiffs concede that Count I for violation of
due process through a violation of Pennsylvania's
Right–to–Know law has been previously dismissed in its
entirety and is no longer at issue in this action. (See Doc.
46 at 3; Doc. 24 at 13.) Thus, it will again be dismissed.
B. Count II: Violation of Due Process and Unlawful
Seizure
Count II alleges a violation of due process rights in an
unlawful seizure of personal and real property. In
analyzing Count II, Magistrate Judge Methvin concluded
that the Fourth Amendment provided an explicit textual
source of constitutional protection, and therefore
recommended dismissing Plaintiffs' Fourteenth
Amendment claims. (Report and Recommendation at 10,
Doc. 61.) In particular, the Plaintiffs contend that the
Magistrate Judge “erred when she combined the Fourth
and Fourteenth Amendment analys[es] despite finding that
an unreasonable seizure had been alleged.” (Obj. at 5–6,
Doc. 63.)
1. Fourteenth Amendment Due Process Claims
In my March 30, 2011 Memorandum, I concluded
that-as to personal property-the Plaintiffs could bring no
substantive due process claim. Hammond v. City of
Wilkes–Barre, 3:09–CV–2310, 2011 WL 1257844, at *6
(M.D.Pa. Mar.30, 2011). Further, I determined that while
a substantive due process claim was possible for the
destruction of real property, that “[s]imply alleging that a
fence in some way ‘encroached’ on the plaintiffs'
property” was insufficient to satisfy the “shock the
conscience” standard.FN1 Id.
FN1. Curiously, the Plaintiffs represent that I
“already held that Plaintiffs' Amended complaint
states a claim for substantive due process in
connection with Plaintiffs' real property.” (Doc.
63 at 7.) This is not the case.
As noted, in the instant Report and Recommendation,
Magistrate Judge Methvin determined that there could be
no Fourteenth Amendment claim. This was based on the
Fourth Amendment's status as the more explicit textual
source of the right at issue. See e.g. O'Malley v. Lukowich,
3:08–CV–0680, 2008 WL 4861477, at *6 (M.D.Pa.
Nov.7, 2008) (Caputo, J.) (finding that “[t]he Fourth
Amendment ... provides an explicit textual source of
constitutional protection to Plaintiff, so any reliance on the
substantive component of the Due Process Clause is
misplaced.”); Malay v. City of Syracuse, 638 F.Supp.2d
303, 313 (N.D.N.Y.2009) (citing County of Sacramento
v. Lewis, 523 U.S. 833, 843, 118 S.Ct. 1708, 140 L.Ed.2d
1043 (1998)) (“Accordingly, where a claim is ‘covered
by’ the Fourth Amendment, substantive due process
analysis is inappropriate.”). This rule, however, only
“commands that claims governed by explicit constitutional
text may not be grounded in substantive due process.”
Torres v. McLaughlin, 163 F.3d 169, 172 (3d Cir.1998)
(emphasis added). Thus, while a claim of Fourteenth
Amendment substantive due process is precluded by a
Fourth Amendment claim, a claim for procedural due
process under the Fourteenth Amendment will not be. See
Presley v. City Of Charlottesville, 464 F.3d 480, 491 (4th
Cir.2006) (finding that the broad notion of substantive due
process was foreclosed by the more explicit protections of
the Fourth Amendment's seizure clause and the Fourteenth
Amendment's procedural due process clause); Brooks v.
Sauceda, 85 F.Supp.2d 1115, 1125 (D.Kan.2000) aff'd,
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242 F.3d 387 (10th Cir.2000) (same); Red Carpet Inn,
LLC v. Kratz, 3:CV–08–1347, 2010 WL 3293336, at *3
(M.D.Pa. Aug.19, 2010) (same).
*3 In order to state a claim for procedural due
process, a plaintiff must allege “(1) that the state deprived
him of a protected interest in life, liberty, or property and
(2) the deprivation occurred without due process of law.”
Burns v. PA Dep't of Corr., 544 F.3d 279, 285 (3d
Cir.2008). Generally, when the government deprives an
individual of their property, some pre-deprivation process
is required. Brown v. Muhlenberg Twp., 269 F.3d 205,
213 (3d Cir.2001). However, this does not apply to
“random and unauthorized” deprivations which, due to
their unpredictable nature, “ma[kes] predeprivation
process impossible.' “ Brown, 269 F.3d at 213 (quoting
Zinermon v. Burch, 494 U.S. 113, 129, 110 S.Ct. 975, 108
L.Ed.2d 100 (1990)). In such cases, “post-deprivation
process is all that is due.” Id. (citation omitted).
Specifically, in such cases, “the availability of an adequate
post-deprivation tort remedy satisfies the requirements of
the Due Process Clause.” Burns v. Alexander, 776
F.Supp.2d 57, 90 (W.D.Pa.2011); see also Revell v. Port
Auth. of New York, New Jersey, 598 F.3d 128, 139 (3d
Cir.2010) (quoting Case v. Eslinger, 555 F.3d 1317, 1331
(11th Cir.2009)) (noting “ ‘that a civil cause of action for
wrongful conversion of personal property under state law
is a sufficient postdeprivation remedy when it extends to
unauthorized seizures of personal property by state
officers.’ ”); Dickens v. Danberg, CIV. 10–786–LPS,
2012 WL 2089516, at *12 (D.Del. June 8, 2012) (finding
common law claim for conversion adequate for random
and unauthorized deprivation of property).
The concrete allegations of Count II of the Amended
Complaint allege that Defendant Glodzik—a city
employee—“unreasonably seized and destroyed
Hammond's personal property.” (Am. Compl. at ¶ 22.)
Some time later, Defendant Glodzik erected a fence
encroaching on Plaintiffs' property. (Id. at ¶¶ 23–24.) The
Amended Complaint further includes conclusory
allegations that these actions were at the direction of the
other Defendants: the City of Wilkes–Barre, the Mayor;
and the Assistant City Attorney. (Id. at ¶¶ 22–24.) While
these allegations do not suggest official city action, but
rather rogue, unsanctioned conduct, without further factual
development it is unclear what sort of due process—if
any—may have been required in this particular situation
without further factual development. As such, Plaintiff's
claim for procedural due process will survive this motion
to dismiss.
2. Fourth Amendment Seizure Claims
The Fourth Amendment to the United States
Constitution protects against “unreasonable searches and
seizures.” U.S. Const. amend. IV. “A Fourth Amendment
‘seizure’ of personal property occurs when ‘there is some
meaningful interference with an individual's possessory
interests in that property.’ ” Brown, 269 F.3d at 209
(quoting United States v. Jacobsen, 466 U.S. 109, 113,
104 S.Ct. 1652, 80 L.Ed.2d 85 (1984)). In respect to the
Plaintiffs' claim as to their real property, the Amended
Complaint simply avers that “the City and its agent ... built
a fence[ ] that encroaches on Plaintiff's property.” (Am.
Compl. at ¶ 1, Doc. 38.) While rather conclusory, this
claim is sufficient to survive a motion to dismiss since the
government building a structure on one's property is itself
a significant interference as to that particular piece of real
property.
*4 As to the personal property involved, Magistrate
Judge Methvin determined that “plaintiffs have alleged
that the seizure of their personal property was
unreasonable inasmuch as they have averred a possessory
interest in the items, such as trees and flowers, even if they
are unable to articulate a privacy interest in the location of
these items.” (Id. at 13.) Such a privacy interest need not
necessarily be implicated for the Fourth Amendment's
protections to apply. Soldal v. Cook County, Ill., 506 U.S.
56, 65, 113 S.Ct. 538, 121 L.Ed.2d 450 (1992) (rejecting
the notion that the “Fourth Amendment protects against
unreasonable seizures of property only where privacy or
liberty is also implicated.”). Therefore, Plaintiffs' personal
property claim will also survive this motion to dismiss.
3. Fifth Amendment Claims
In her Report and Recommendation, the Magistrate
Judge recommended that Plaintiffs' due process claim
under the Fifth Amendment be dismissed as it only applies
to federal actors. See Caldwell v. Beard, 324 F. App'x
186, 189 (3d Cir.2009) (“the due process clause under the
Fifth Amendment only protects against federal
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governmental action and does not limit the actions of state
officials.”). Neither party objects to this recommendation
and it will be adopted.
C. Count III: State Law Claims
Magistrate Judge Methvin, in determining that all of
the aforementioned claims should be dismissed,
recommended that the Court decline to exercise
supplemental jurisdiction over the remaining state law
claims. However, since some federal claims will be
allowed to proceed, the state law claims will continue to
enjoy supplemental jurisdiction.
D. Individual Defendants in Official Capacity
while the official capacity claims against the individual
defendants will be dismissed, the Court will retain
supplemental jurisdiction of the state law claims. An
appropriate order follows.
M.D.Pa.,2012.
Hammond v. City of Wilkes-Barre
Not Reported in F.Supp.2d, 2012 WL 3542277 (M.D.Pa.)
END OF DOCUMENT
Magistrate Judge Methvin determined that the
individual defendants in their official capacities should be
dismissed “as redundant of the claims plaintiffs have
brought against the city.” (Report and Recommendation at
16, Doc. 61.) This is because “when a plaintiff names the
municipality as a defendant, it is redundant, and possibly
confusing to the jury, to also include the employee in his
or her official capacity, because the two are really one
defendant.” Crane v. Cumberland County, Pa., CIV.A.
1:CV–99–1798, 2000 WL 34567277, at *3 (M.D.Pa. June
16, 2000) aff'd, 64 F. App'x 838 (3d Cir.2003). The
Plaintiffs do not object to the core of this
recommendation, but instead argue that “there is no ruling
that state that Plaintiff cannot identify the Defendants as
they have in their Complaint for clarification.” (Pls.' Br. at
11, Doc. 63.) While these names do not need to be excised
from the complaint, I will adopt Magistrate Judge
Methvin's recommendation insofar as the § 1983 official
capacity claims against the individual defendants,
Leighton, Vinsko, and Glodzik are dismissed with
prejudice.
CONCLUSION
Magistrate Judge Mildred E. Methvin's Report and
Recommendation will be adopted in part and rejected in
part. Specifically, Count I for violation of due process
through a violation of Pennsylvania's Right–to–Know law
will be dismissed. Plaintiffs' Fourteenth Amendment
claims for substantive due process and Fifth Amendment
due process will also be dismissed, but their claims for
procedural due process under the Fourteenth Amendment
will be allowed to proceed. Plaintiffs' Fourth Amendment
claims will also survive the motions to dismiss. Finally,
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