Dunn et al v. Graham et al

Filing 20

MEMORANDUM (Order to follow as separate docket entry) re 16 MOTION to Dismiss Amended Complaint Pursuant to Fed.R.Civ.P. 12(b) filed by Pittston Township, James Graham. Signed by Honorable A. Richard Caputo on 6/18/15. (jam)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
JEFFREY and ANNA DUNN,
Plaintiffs,
v.

CIVIL ACTION NO. 3:CV-14-1736
(JUDGE CAPUTO)

JAMES GRAHAM and PITTSTON
TOWNSHIP,
Defendants.
MEMORANDUM
Presently before me is Defendants’ Motion to Dismiss Count II of Plaintiffs’ Amended
Complaint (Doc. 15) pursuant to Federal Rule of Civil Procedure 12(b)(6) (Doc. 16). In Count
II, Plaintiffs Jeffrey and Anna Dunn (“the Dunns”) claim that Defendants Pittston Township
(“the township,” “Pittston”) and Officer James Graham, a township police officer, violated Mr.
Dunn’s rights to procedural and substantive due process as protected by the United States
Constitution’s Fourth, Fifth, and Fourteenth amendments. Because the Amended Complaint
fails to plausibly state a claim that Defendants violated the right to procedural and
substantive due process, the Motion to Dismiss (Doc. 16) will be granted and Count II will
be dismissed.
I. Background
A. Factual Background
The relevant facts as stated in the Amended Complaint (Doc. 15) are as follows:
Plaintiffs Jeffrey and Anna Dunn are married and reside in Pittston Township,
Pennsylvania. (Doc. 15, ¶ 3.) Defendant James Graham was at all relevant times employed
as a police officer by Defendant Pittston Township. (Id., ¶ 4.) Plaintiffs assert that
Defendant Graham was acting within the scope of his employment at all relevant times. (Id.)
The Dunns are owners in fee of real estate in Pittston Township. (Id., ¶ 6.) Plaintiffs
assert that this land is located in an Industrial District as set out by a township zoning
ordinance. (Id.) In March 2009, the township issued Plaintiffs a building permit for the
construction of a garage on their property. (Id., ¶ 7.) They built the garage and used it for

industrial purposes. In July 2012, the garage burned down as the result of arson. (Id., ¶ 8.)
The Dunns immediately attempted to repair what remained of the building, the foundation
and floor. (Id., ¶ 9.) They began to rebuild the garage in the same location and with the
same dimensions and materials. (Id.)
On September 7, 2012, Defendant Graham accompanied Pittston’s Zoning Officer
to serve the Dunns a “stop work order” issued against them. (Id., ¶ 10.) This order was
issued on the grounds that construction to rebuild the garage violated the Pennsylvania
Uniform Code, and the original permit had been issued in error, as the land was in a
Residential District. (Id.) Plaintiffs assert that the order was erroneously issued, since it was
based on the incorrect claim that the property is zoned for residential use, when in fact, they
maintain it is zoned for industrial use. (Id., ¶ 11.)
When the order was served, Mr. Dunn took out his cell phone to call the Pennsylvania
State Police. (Id., ¶ 12.) Plaintiffs allege that “without uttering a single word and without any
provocation or cause,” Officer Graham “deliberately and in reckless disregard of Plaintiff
Jeffrey Dunn’s physical safety and rights, violently and brutally” and “with great force”
punched and slammed Mr. Dunn’s right arm, wrist, and hand, causing severe injuries. (Id.,
¶ 13.) This caused Mr. Dunn’s phone to fall to ground with such force that it broke apart.
(Id.) Plaintiff was unarmed and made no furtive movements or gestures. (Id., ¶ 14.)
B. Procedural Background
Based on the foregoing, Plaintiffs filed a Complaint on September 6, 2014 (Doc. 1).
On December 19, 2014, Defendants filed a Motion to Dismiss (Doc. 6), which I granted in
part and denied in part on February 18, 2015 (Doc. 14). I granted Plaintiffs leave to amend
their complaint. (Id.) On March 10, 2015, Plaintiffs filed an Amended Complaint (Doc. 15),
which contains five (5) counts: Count I alleges assault and battery and the use of excessive
force in violation of Mr. Dunn’s “federally protected rights.” (Id., ¶¶ 15-26.) Count II alleges
a violation of Mr. Dunn’s right to Procedural and Substantive Due Process of Law under the
Fourth, Fifth, and Fourteenth Amendments. (Id., ¶¶ 27-37.) Count III alleges a violation of
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Plaintiffs’ rights to the security and privacy of their home, pursuant to the Fourth Amendment.
(Id., ¶¶ 38-45.) Count IV alleges inadequate supervision and training by Pittston Township,
in violation of 42 U.S.C. § 1983. (Id., ¶¶ 46-52.) Count V alleges loss of consortium on the
part of Anna Dunn. (Id., ¶¶ 53-58.) Plaintiffs request compensatory and punitive damages,
and attorneys’ fees pursuant to 42 U.S.C. § 1988. (Id., 11-12.)
On March 23, 2015 Defendants filed a Motion to Dismiss (Doc. 16), and a Brief in
Support (Doc. 17). Defendants seek to dismiss Count II of the Complaint, which alleges a
violation of Plaintiff Dunn’s procedural and due process rights as protected by the Fourth,
Fifth, and Fourteenth Amendments to the United States Constitution. On April 6, Plaintiffs
filed a Brief in Opposition (Doc. 18). Thus, this motion is fully briefed and ripe for disposition.
II. Legal Standard
Federal Rule of Civil Procedure 12(b)(6) provides for the dismissal of a complaint, in
whole or in part, for failure to state a claim upon which relief can be granted. When
considering such a motion, the Court's role is limited to determining if a plaintiff is entitled to
offer evidence in support of his claims. See Semerenko v. Cendant Corp., 223 F.3d 165,
173 (3d Cir. 2000). The Court does not consider whether a plaintiff will ultimately prevail.
See id. A defendant bears the burden of establishing that a plaintiff’s complaint fails to state
a claim. See Gould Elecs. v. United States, 220 F.3d 169, 178 (3d Cir. 2000).
“A pleading that states a claim for relief must contain . . . a short and plain statement
of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). The
statement required by Rule 8(a)(2) must “‘give the defendant fair notice of what the . . . claim
is and the grounds upon which it rests.’” Erickson v. Pardus, 551 U.S. 89, 93 (2007) (per
curiam) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Detailed factual
allegations are not required. Twombly, 550 U.S. at 555. However, mere conclusory
statements will not do; “a complaint must do more than allege the plaintiff's entitlement to
relief.” Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d Cir. 2009). Instead, a complaint
must “show” this entitlement by alleging sufficient facts. Id. “While legal conclusions can
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provide the framework of a complaint, they must be supported by factual allegations.”
Ashcroft v. Iqbal, 556 U.S. 662 (2009). As such, “[t]he touchstone of the pleading standard
is plausibility.” Bistrian v. Levi, 696 F.3d 352, 365 (3d Cir. 2012).
The inquiry at the motion to dismiss stage is “normally broken into three parts: (1)
identifying the elements of the claim, (2) reviewing the complaint to strike conclusory
allegations, and then (3) looking at the well-pleaded components of the complaint and
evaluating whether all of the elements identified in part one of the inquiry are sufficiently
alleged.” Malleus v. George, 641 F.3d 560, 563 (3d Cir. 2011).
Dismissal is appropriate only if, accepting as true all the facts alleged in the complaint,
a plaintiff has not pleaded “enough facts to state a claim to relief that is plausible on its face,”
Twombly, 550 U.S. at 570, meaning enough factual allegations “‘to raise a reasonable
expectation that discovery will reveal evidence of’” each necessary element. Phillips v. Cnty.
of Allegheny, 515 F.3d 224, 234 (3d Cir. 2008) (quoting Twombly, 550 U.S. at 556). “The
plausibility standard is not akin to a ‘probability requirement,’ but it asks for more than a
sheer possibility that a defendant has acted unlawfully.” Iqbal, 556 U.S. at 678. “When
there are well-pleaded factual allegations, a court should assume their veracity and then
determine whether they plausibly give rise to an entitlement to relief.” Id. at 679.
In deciding a motion to dismiss, the Court should consider the complaint, exhibits
attached to the complaint, and matters of public record. Mayer v. Belichick, 605 F.3d 223,
230 (3d Cir. 2010) (citing Pension Benefit Guar. Corp. v. White Consol. Indus., Inc., 998 F.2d
1192, 1196 (3d Cir. 1993)).

The Court may also consider “undisputedly authentic”

documents when the plaintiff’s claims are based on the documents and the defendant has
attached copies of the documents to the motion to dismiss. Pension Benefit Guar. Corp, 998
F.2d at 1196. The Court need not assume the plaintiff can prove facts that were not alleged
in the complaint, see City of Pittsburgh v. W. Penn Power Co., 147 F.3d 256, 263 & n.13 (3d
Cir. 1998), or credit a complaint's “‘bald assertions'” or “‘legal conclusions.’” Morse v. Lower
Merion Sch. Dist., 132 F.3d 902, 906 (3d Cir. 1997) (quoting In re Burlington Coat Factory
Sec. Litig., 114 F.3d 1410, 1429–30 (3d Cir. 1997)).
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III. Discussion
Defendants seek to dismiss Count II, which alleges the violation of Plaintiff Jeffrey
Dunn’s procedural and substantive due process rights. (Doc. 15, 6.) Specifically, the
Amended Complaint alleges that the defendants’ actions deprived Mr. Dunn of his liberty
without due process of the law, and that he was deprived of significant liberty and property
interests guaranteed by the Fourth and Fourteenth Amendments.
Defendants argue that Plaintiffs fails to state a claim upon which relief can be granted,
as the Complaint’s statements are vague and conclusory. Furthermore, to the extent that
it does explain the events that occurred, it does not demonstrate that Mr. Dunn’s
constitutional rights were violated.
Taking all facts in the Amended Complaint as true and resolving all inferences in
Plaintiffs’ favor, the complaint fails to state a claim of a substantive and procedural due
process violation. While Plaintiffs amended their complaint, they still have not plead
sufficient facts to plausibly state that Mr. Dunn’s due process rights were violated as claimed
in Count II, and my reasons for dismissing their prior iteration of Count II remain true.
In my February 2015 memorandum and order (Docs. 13, 14), I dismissed Count II as
it appeared in the initial complaint. In making that determination, I relied on the following
holding by the Third Circuit Court of Appeals, which applies in this instance as well:
To state a claim that a municipal land use decision violates substantive due
process pursuant to section 1983, plaintiff must meet two requirements. First,
plaintiff must allege that the particular property interest at issue is worthy of
substantive due process protection. Second, plaintiff must allege that the
government's deprivation of that protected property interest shocks the
conscience.
Siegmond v. Fedor, No. 3:CV-01-2266 WL 1490430, at *4 (M.D. Pa. June 29, 2004) (internal
quotation marks and further citations omitted)).
In my prior memorandum and order, I found that the Dunns had not alleged that the
government’s action in issuing the stop work order “shocks the conscience,” as required.
Upon review of the Amended Complaint, this remains true.
While the Amended Complaint uses the language that the government’s actions were
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“conscience shocking,” even taking all facts as true and resolving all inferences in Plaintiffs’
favor, the conduct does not appear to be plausibly conscience shocking. I need not accept
bald assertions and conclusions.

The Amended Complaint is largely vague in its

descriptions of Defendants’ “conscience-shocking” actions, but where the Amended
Complaint is more specific, the conduct describe does not rise to the level of conscienceshocking: “the township officials gave contradictory indications about what kind of
submission would be approved, have attempted to persuade Plaintiffs to withdraw the
submissions through unlawful means, and caused Plaintiffs to incur great expense in revising
the plans.” (Doc. 15, ¶ 36.) Plaintiffs allege that they were denied the permit and issued a
stop work order because the township erroneously contended that the area was zoned for
residential use only, and the prior permit had been issued in error. (Doc. 1, ¶ 11.)
As I stated in my February 2015 memorandum, the town’s actions in issuing a stop
work order based upon what the Plaintiffs describe as an “erroneous contention” does not
rise to the level of conscience-shocking. As I stated in that memorandum (Doc. 14):
Conscience-shocking is a high bar. “[T]he ‘shocks the conscience’ standard
encompasses ‘only the most egregious official conduct.’” Siegmond, at *5
(citations omitted.) “[A]ctions that suggest ‘a bad motive’ or are found to be
‘senseless and spiteful’ are insufficient to shock the conscience.” Id., quoting
Levin v. Upper Makefield Twp., No. 99-CV-5313, WL 21652301, at *9 (E.D. Pa.
Feb. 25, 2003) aff'd sub nom. Levin v. Upper Makefield Twp., Bucks Cnty., Pa.,
90 F. App'x 653 (3d Cir. 2004). In Siegmond, the Third Circuit found that
“improper motive” did not rise to the level of conscience-shocking, nor did, at
times, “illegal practices by a Township regarding its handling of land-use matters.”
Siegmond at *5.
Even accepting all facts in the Amended Complaint as true and resolving all
inferences in favor of Plaintiffs, they have failed to allege sufficient facts to show that the
township’s decision was conscience-shocking and violated Mr. Dunn’s due process rights,
and so this claim will be dismissed.
Furthermore, viewing the Amended Complaint, it appears that Count II is based on
the Pittston Township officials’ erroneous zoning decision and issuance of the stop work
order, which prevented Plaintiffs from rebuilding their garage. The Amended Complaint
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describes the allegedly unconstitutional conduct in vague terms as “conduct designed to
restrict the Plaintiffs from developing their property.” (Id., ¶ 35.)
However, Plaintiffs contend in their brief in opposition to the motion to dismiss (Doc.
18) that they do not seek to assert “any other claim other than the injury to Jeffery Dunn on
September 7, 2012.” (Id., 3.) If this is the case, then Plaintiffs have failed to state a claim
for violation of procedural or substantive due process. Plaintiffs state in their brief in
opposition to the motion to dismiss that
[t]he complained upon language in the Amended Complaint is merely ‘notice
pleading’ that the Plaintiffs intend to present evidence that the Township acted
wrongfully in their prior zoning matters’ and explains the bad motives of the
Defendants. . . The Plaintiffs' Amended complaint is not attempting to litigate the
Township zoning decisions or actions.
(Id., 3-4.) If Plaintiffs merely include information about the zoning decision and stop work
order to put Defendants on notice that they plan to assert that Defendants acted wrongfully
in prior zoning matters, and to explain Defendants’ motives, then this information is not
properly included in a separate count of the complaint, alleging a separate offense. If
Plaintiffs only seek relief for “the injury to Jeffrey Dunn,” as they state in their pleadings,
Count II fails to state a claim for violation of substantive and procedural due process rights.
IV. Conclusion
For the above reasons, Defendants’ Motion to Dismiss (Doc. 16) will be granted, and
Count II of Plaintiffs’ Amended Complaint (Doc. 15) will be dismissed. Because amendment
would be inequitable and futile, leave to amend will not be granted.
An appropriate order follows.

June 18, 2015
Date

/s/ A. Richard Caputo
A. Richard Caputo
United States District Judge

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