Brunelle et al v. City of Scranton et al
Filing
97
MEMORANDUM OPINION re: 86 defendants motion for partial summaryjudgment. Signed by Magistrate Judge Martin C. Carlson on April 12, 2019. (kjn)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
ALEXANDER BRUNELLE, et al.,
Plaintiffs
v.
CITY OF SCRANTON, et al.,
Defendants
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Civil No. 3:15-cv-960
(Magistrate Judge Carlson)
MEMORANDUM OPINION
I.
INTRODUCTION AND FACTUAL BACKGROUND
This case arises out of a longstanding dispute between a real estate contractor
and developer, the City of Scranton, the Director of the city’s Department of
Licensing, and a city housing inspector. The plaintiff, Alexander Brunelle, has
brought this action on his own behalf and on behalf of a number of Limited Liability
Companies1 he controls which hold certain of his real property in Scranton, alleging
that the defendants violated a number of his constitutional rights by subjecting him
1
Aside from Brunelle, the plaintiffs include Dunmore Exclusives, LLC; 1137
Albright LLC; 833 Fig LLC; 223 East Mountain LLC; 421 South Main LLC; 718
Pittston LLC; 544 Hemlock LLC; 150 South Sumner LLC; 506 Lackawanna LLC;
800 Electric LLC; 701 Moosic LLC; and 530 South Irving LLC. For ease of
reference, unless discussing a specific property, the plaintiffs shall be referred to
either as “plaintiff” or “Brunelle” in this memorandum.
to illegal and arbitrary actions allegedly taken relative to the plaintiff’s business
activities and properties.
Brunelle commenced this case originally by filing a complaint on May 15,
2015. (Doc. 1.) He subsequently filed an amended complaint, (Doc. 28), which
represents a detailed, 67-page, 273-paragraph pleading. (Doc. 28.) In it, Brunelle
provides a lengthy factual recital describing a pattern of allegedly discriminatory
conduct by the defendants targeting properties that the plaintiff owns. (Id. ¶¶ 30195.) According to Brunelle, the defendants targeted at least eleven properties that
he owned, and engaged in a wide array of discriminatory practices. (Id.) Thus,
Brunelle alleges that the defendants singled him out for discriminatory non-traffic
criminal citations, issuing more than 150 baseless criminal complaints against
Brunelle and his properties in the city. (Id. ¶ 194(e).) Brunelle also alleges that the
defendants issued baseless condemnation orders on various properties that he
owned, condemning properties even after they had been inspected and approved for
occupancy. (Id. ¶¶30-195.)
Brunelle further avers that defendant Patrick Hinton, the Director of the City
of Scranton Department of Licensing (“Hinton”), and Patricia Jennings-Fowler
(“Fowler”), a housing inspector for the city, issued arbitrary, contradictory, and
peremptory directives to the plaintiff which stymied efforts to renovate, market, and
rent these properties. For example, according to Brunelle, with respect to a property
2
the plaintiff owned on Lavelle Street in Scranton, in April of 2014 defendant Fowler
simultaneously served stop-work and mandate orders on the property. The stopwork order required the plaintiff to cease operations immediately; the mandate order
required him to correct deficiencies at the property immediately. By issuing both
orders simultaneously, Brunelle asserts that the defendants “put Plaintiff in an absurd
situation as Plaintiff was prohibited from working on the property pursuant to the
Stop Work Order but simultaneously required to address the alleged trash and
sanitation violations immediately.” (Id. ¶ 143.)
The complaint further avers that the defendants have issued demolition orders
to arbitrarily frustrate Brunelle’s business endeavors.
Specifically, Brunelle
contends that the defendants issued demolition orders on the properties acquired by
the plaintiff in December 2014, thus preventing the plaintiff from making any
improvements or renovations to the property, but had yet to act upon these
demolition orders as of June, 2017. (Id. ¶¶ 167-77.) Brunelle further asserts that the
defendants have arbitrarily denied licenses and permits to the plaintiff’s brother,
Theodore Brunelle, who served as an independent contractor on many of the
plaintiff’s renovation projects in order to deter and frustrate those projects. (Id. ¶
194(d).)
According to Brunelle, many of these actions have been taken by the
defendants without affording Brunelle any notice or opportunity to respond to the
3
alleged deficiencies that had been identified. (Id. ¶¶ 30-195.) Moreover, Brunelle
claims that both Fowler and Hinton have made statements which confirm their
discriminatory bias against the plaintiff, including allegedly informing the plaintiff’s
employees that their actions are designed to send a message to the plaintiff, or deter
the plaintiff and his family members from filing lawsuits.2 (Id. ¶¶ 190, 194(b).)
Brunelle specifically alleges that Defendant Fowler has engaged in disparate
and discriminatory enforcement actions targeting his properties, by describing a
pattern of disparate code enforcement by Fowler as compared to all other city
inspectors. (Id. ¶¶ 30-40.) Finally, Brunelle alleges that this pattern of unlawful and
discriminatory conduct increased after the plaintiff filed his initial complaint in
federal court. (Id. ¶¶ 194(a)-194(i).) Furthermore, according to Brunelle, a city
employee informed one of the plaintiff’s employees: “that Patrick Hinton had
instructed that no permits were to be issued for work by Theodore Brunelle while
his brother Alexander Brunelle’s lawsuit was pending in Federal Court.” (Id. ¶
194(d).)
Set against the backdrop of these well-pleaded facts, Brunelle brought eleven
separate claims against the defendants. Six of the counts allege federal constitutional
2
By way of example, Brunelle has submitted evidence that would show that
Hinton informed Elizabeth Root, an office manager for one of the plaintiffs, that he
“threatened to condemn the buildings to send a message to Alex.” (Doc. 28, Am.
Compl., Ex. Z-23 at 6.)
4
infractions. Specifically, Brunelle alleges that the conduct of these officials: (1)
denied the plaintiff procedural due process (Id., Count 1 ¶¶ 195-20); (2) constituted
a substantive due process violation (Id., Count 2, ¶¶210-215); (3) violated Brunelle’s
right to equal protection under the law (Id., Count 3, ¶¶ 216-26); (4) was taken in
retaliation against Brunelle for exercising his First Amendment right to petition the
courts for redress of grievances (Id., Count 4, ¶¶227-231); (5) amounted to an
unlawful and unconstitutional taking of property without just compensation (Id.,
Count 5, ¶¶ 232-235); entailed unreasonable searches and seizures in violation of the
Fourth and Fourteenth Amendments (Id., Count 6, ¶¶ 237-245); and (7) constituted
malicious prosecution in violation of the plaintiff’s constitutional rights (Id., Count
8, ¶¶ 253-257).
Brunelle further alleges that the City of Scranton is legally
responsible for the actions of its officers and employees because by failing to
adequately train and oversee the actions of these employees, the city effectively
fostered a custom, policy and practice of illegal discrimination. (Id., Count 7, ¶¶
246-252.) Brunelle’s complaint then asserts a series of pendent state-law tort claims,
including allegations of malicious prosecution (Id., Count 9, ¶¶258-262), abuse of
process (Id., Count 10, ¶¶ 263-267), and tortious interference with existing
contractual relations (Id., Count 11, ¶¶ 268-273.)
The defendants moved to dismiss seven of the claims (Doc. 30), arguing that
Brunelle had failed to state a claim upon which relief could be granted with respect
5
to his claims of equal protection, unlawful taking, malicious prosecution, abuse of
process, and interference with contractual relations. By report and recommendation,
we recommended that the motion be denied with respect to all claims with the
exception of Brunelle’s takings claim in Count 5. (Doc. 73.) The district court
adopted that recommendation, and the parties subsequently consented to Magistrate
Judge jurisdiction and the case was referred to the undersigned for all further
proceedings. (Docs.76, 82.)
Defendants Fowler and Hinton have now filed a second dispositive motion, a
partial motion for summary judgment, this time arguing that they are entitled to
qualified immunity from Brunelle’s federal claims. (Doc. 86.) The defendants argue
that a slew of actions taken with respect to Brunelle’s properties, including
warrantless searches, demolition orders, condemnation orders, the issuance of stopwork orders and citations, and other official actions were both lawful and reasonable
under the circumstances and did not violate clearly established law of which either
would have known. (Id.) Brunelle disagrees, arguing that there is substantial
evidence to show that these individual city officials targeted him specifically for
reasons that were retaliatory and reflected a personal animus towards him, and which
bore no relation to the actual state of his properties. Brunelle testified extensively at
his deposition regarding these allegations and included a list of more than 100
citations that had been issued to him with respect to his properties, as well as a
6
“partial list” setting forth 56 of the citations having been adjudicated as not guilty or
otherwise in Brunelle’s favor. (Doc. 92, Ex. A.) Brunelle further testified at length
during his deposition, revealing a basic, fundamental, factual disagreement with the
defendants concerning their claims regarding both the state of his properties, and
their motive, intent and state of mind relative to the actions that they took.
Notably, the defendants – who are seeking summary judgment in their favor
– have offered little by way of evidence in support of the motion and have submitted
no exhibits or other evidence to support their arguments. Instead, they have relied
generally upon allegations in the amended complaint, representations contained in
Hinton’s deposition, or representations made by Brunelle himself acknowledging
the purported reasons that he was given for the citations, condemnations, and work
orders that were issued with respect to his properties. This reliance upon their
purported justifications, however, is misplaced since Brunelle presents
countervailing evidence which suggests that these justifications were pretextual and
designed to conceal discriminatory animus. Thus, often the evidence cited by the
defendants provides only limited support for their factual assertion and, in any event,
is frequently disputed by Brunelle’s own testimony.
Upon consideration of the motion, we conclude that with one exception
discussed more fully below the motion for summary judgment must be denied at this
time because the record is replete with disputed issues of fact relevant both to the
7
defendants’ motivations for their conduct, and the defendants’ arguments and
assertions regarding the reasons for their actions.
II.
STANDARD OF REVIEW
Defendants Hinton and Fowler have moved for summary judgment pursuant
to Rule 56(a) of the Federal Rules of Civil Procedure, which provides that “[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 judgment as a matter of
law.” Fed. R. Civ. P. 56(a). Through summary adjudication, a court is empowered
to dispose of those claims that do not present a “genuine dispute as to any material
fact,” Id., and for which a trial would be “an empty and unnecessary formality.”
Univac Dental Co. v. Dentsply Int’l, Inc., 702 F. Supp. 2d 465, 468 (M.D. Pa. 2010).
The substantive law identifies which facts are material, and “[o]nly disputes over
facts that might affect the outcome of the suit under the governing law will properly
preclude the entry of summary judgment.” Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 248 (1986). A dispute about a material fact is genuine only if there is a
sufficient evidentiary basis that would allow a reasonable fact finder to return a
verdict for the non-moving party. Id. at 248-49.
The moving party has the initial burden of identifying evidence that it believes
shows an absence of a genuine issue of material fact. Conoshenti v. Pub. Serv. Elec.
& Gas Co., 364 F.3d 135, 145-46 (3d Cir. 2004). Once the moving party has shown
8
that there is an absence of evidence to support the nonmoving party’s claims, “the
non-moving party must rebut the motion with facts in the record and cannot rest
solely on assertions made in the pleadings, legal memoranda, or oral argument.”
Berckeley Inv. Group, Ltd. v. Colkitt, 455 F.3d 195, 201 (3d Cir. 2006); accord
Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986). If the nonmoving 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,” summary
judgment is appropriate. Celotex, 477 U.S. at 322.
Moreover, a party who seeks to resist summary judgment by citing to disputed
material issues of fact must show by competent evidence that such factual disputes
exist. Similarly, it is well-settled that “[o]ne cannot create an issue of fact merely
by . . . denying averments . . . without producing any supporting evidence of the
denials.” Thimons v. PNC Bank, NA, 254 F. App’x 896, 899 (3d Cir. 2007) (citation
omitted). Thus, “[w]hen a motion for summary judgment is made and supported . .
. , an adverse party may not rest upon mere allegations or denial.” Fireman’s Ins.
Co. of Newark NJ v. DuFresne, 676 F.2d 965, 968 (3d Cir. 1982). Likewise, “a
party resisting a [Rule 56] motion cannot expect to rely merely upon bare assertions,
conclusory allegations or suspicions.” Gans v. Mundy, 762 F.2d 338, 341 (3d Cir.
1985) (citation omitted). Indeed, summary judgment is appropriate if the nonmoving party responds only with merely colorable, conclusory, or speculative
9
evidence. Anderson, 477 U.S. at 249. There must be more than a scintilla of
evidence supporting the non-moving party, and more than some metaphysical doubt
as to the material facts. Id. at 252; see also Matsushita Elec. Indus. Co. v. Zenith
Radio Corp., 475 U.S. 574, 586 (1986). In making this determination, the Court
“must consider all evidence in the light most favorable to the party opposing the
motion.” A.W. v. Jersey City Pub. Schs., 486 F.3d 791, 794 (3d Cir. 2007).
This principle applies with particular force to factual disputes which relate to
matters of motive or intent. In this regard, it is well-settled that: AThe motive or
absence of motive of a party to engage in conduct alleged by another party is relevant
to determining whether a genuine issue of fact exists. Matsushita Electric Industrial
Co. v. Zenith Radio Corp., 475 U.S. 574, 596 (1986).@ Berda v. CBS Inc., 800
F.Supp. 1272, 1276 (W.D.Pa), aff=d., 975 F.2d 1548 (3d Cir. 1992).
III.
DISCUSSION
The defendants’ motion for summary judgment is limited to arguing that
Defendants Hinton and Fowler are entitled to qualified immunity from Brunelle’s
federal civil rights claims. As support for their motion, the defendants contend that
the actions that they each took with respect to searching Brunelle’s properties
without a warrant, issuing citations, stop-work orders, condemnation notices, and
other sanctions against Brunelle or his properties were lawful, and that no reasonable
city housing inspector on their position would have believed or known that they were
10
violating clearly established federal law through their official actions. They also
seem to renew their arguments that the Court has previously considered, and
rejected, regarding the adequacy of Brunelle’s claims. We previously concluded
that with one exception Brunelle’s claims were adequately pled and our review of
the deposition testimony in this case makes it abundantly clear that nearly every one
of the factual and legal arguments the defendants make in their motion are mired in
factual disputes and therefore not amenable to summary judgment.
As far as evidentiary support for their qualified immunity argument, the
defendants refer generally to deposition testimony of Patrick Hinton and Alexander
Brunelle, which in most cases does little more than refer to the alleged basis for the
sanctions and other enforcement action that the defendants took. Our review of the
deposition testimony itself reveals that there is not just marginal disagreement
between Brunelle and the defendants regarding the official sanctions levied, but a
fundamental dispute over whether many or any of the defendants’ actions were even
based on actual, genuine facts, or were instead motivated entirely by the defendants’
animus towards Brunelle, and retaliation for another lawsuit that he had initiated.3
3
Examples of the disputes in the record abound, but by way of example, the
defendants cite to several pages of Brunelle’s deposition testimony as support for
the assertion that Brunelle had received a formal notice of condemnation and a
permit denial for the property located at 210-212 Prospect Avenue in Scranton.
(Doc. 88, at p. 4.) But this testimony states only that Brunelle did, in fact, receive
the notice. Nothing in Brunelle’s testimony can even remotely be read to suggest
that he concurs in the defendants’ action, or in the factual basis proffered for the
11
Importantly for purposes of the pending motion for partial summary
judgment, the record also makes clear that the parties sharply disagree about the
individual defendants’ motivation and intent relative to their conduct. Brunelle has
cited to an array of witness testimony to support his contention that Defendants
Hinton and Fowler were explicitly motivated by an improper purpose, namely,
animus towards him and his brother. This evidence includes testimony by multiple
witnesses who claim to have heard the defendants explicitly admit to the retaliatory
animus that motivated them. He thus claims that the defendants fabricated reasons
to sanction him and his properties, not because there were legitimate code violations,
but because the defendants did not like him and wanted to retaliate against him for
other disputes or litigation Brunelle had with the city and its inspectors.
The defendants do not really contest Brunelle’s evidence regarding their
subjective motivation or express dislike for him; instead, the defendants repeat their
argument that the actions that they each took were reasonable and did not violate
citation he received. Moreover, it is obvious that Brunelle maintains that the entire
sanction was trumped up and pretextual cover for discriminatory or retaliatory
motive. Thus, Brunelle was asked “in that formal notice were you advised as to
the reasons the property was condemned?” (Doc. 89-3, Dep. of Alexander
Brunelle 149:24-150:1.) Brunelle acknowledges that he was but then notes that,
the charge that the property was a fire hazard “is just silly. [Fowler] may have
stated that in her letter, but there would be no evidentiary basis for that whatsoever
to my knowledge.” Similar examples may be found throughout much of
Brunelle’s deposition testimony outlining the scores of sanctions that have been
levied against him by the individual defendants in this case and noting that a great
many of those cases resolved in Brunelle’s favor. (Doc. 92, Ex. A, passim.)
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any clearly established law. But the defendants’ argument assumes that their version
of the facts regarding their motive and intent, as well as their views concerning the
condition of Brunelle’s properties or the legitimate reasons proffered for their
conduct is undisputed.
It is not.
In our judgment, the factual disputes that pervade the record regarding the
substance of Brunelle’s constitutional claims, and about the defendants’ subjective
motivations behind their treatment of Brunelle, make qualified immunity
inappropriate with the one exception of Brunelle’s Fourth Amendment claim relating
to a single warrantless entry into a property on South Sumner Street in Scranton.
The doctrine of qualified immunity shields governmental officials from civil
liability so long as their conduct “does not violate clearly established statutory or
constitutional rights of which a reasonable person would have known.” Mullenix v.
Luna, -- U.S. -- , 136 S. Ct. 305, 308 (2015). The qualified immunity inquiry has
two parts. The first asks whether the plaintiff has alleged sufficient facts to “make
out a violation of a constitutional right.” Pearson v. Callahan, 555 U.S. 223, 232
(2009). The second question is “whether the right at issue was clearly established at
the time of [the] defendant’s alleged misconduct.” Id. (internal quotation marks
omitted). A court may “exercise [its] sound discretion in deciding which of the two
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prongs of the qualified immunity analysis” to address first “in light of the
circumstances of the particular case at hand.” Pearson, 555 U.S. at 236.
A right is “clearly established” when, “at the time of the challenged conduct,
‘[t]he contours of [a] right [are] sufficiently clear’ that every ‘reasonable official
would have understood that what he is doing violates that right.’” Ashcroft v. alKidd, 563 U.S. 731, 741 (2011) (quoting Anderson v. Creighton, 483 U.S. 635, 640
(1987)) (alterations in original). “If no case speaks directly to the legality of the
officer’s conduct, the challenged conduct [needs] to be such that reasonable officers
in the defendant[‘s] position at the relevant time could have believed, in light of what
was in the decided case law, that their conduct was lawful.” Geist v. Ammary, 40
F. Supp. 3d 467, 485 (E.D. Pa. 2014) (citing Giuffre v. Bissell, 31 F.3d 1241, 1255
(3d Cir. 1994)) (internal quotations omitted).
Qualified immunity is intended to immunize governmental officials from
liability except in those cases where it would be objectively unreasonable for them
to believe that their conduct was warranted. As the Third Circuit has observed,
“[t]hat threshold is a high one.” Thompson v. Howard, 679 F. App’x 177, 181 (3d
Cir. 2017). The doctrine exists because “it is inevitable that [government] officials
will in some cases reasonably but mistakenly” believe that their actions are justified
and permissible. Anderson, 483 U.S. at 641. Qualified immunity thus “gives ample
room for mistaken judgments” and “protect[s] all but the plainly incompetent or
14
those who knowingly violate the law.” Kelly v. Borough of Carlisle, 622 F.3d 248,
254 (3d Cir. 2010) (internal quotation marks and citations omitted). For that reason,
qualified immunity applies unless it is “beyond debate” that an official acted
unreasonably, Mullenix, 136 S. Ct. at 309, and unless “every reasonable official
would [have understood] that what he [was] doing violate[d]” the right at issue.
Reichle v. Howards, 566 U.S. 658, 132 S. Ct. 2088, 2093 (2012) (internal quotation
marks and citation omitted) (first alteration in original). As the Supreme Court
clarified, while “[w]e do not require a case directly on point, . . . existing precedent
must have placed the statutory or constitutional question beyond debate.” Mullenix,
136 S. Ct. at 308.
A court’s qualified immunity analysis should also be an objective inquiry
“into the reasonableness of the official action.” Anderson, 483 U.S. at 645. But the
Supreme Court has recognized that when facts relevant to the defense are in dispute,
“discovery may be necessary before [a] motion for summary judgment on qualified
immunity grounds can be resolved.” Id. at 646 n.6. A court may require a plaintiff
to provide “specific nonconclusory factual allegations that establish improper
motive causing cognizable injury in order to survive a prediscovery motion for [ ]
summary judgment.” Crawford-El v. Britton, 523 U.S. 574, 598 (1998). In cases
where a plaintiff fails to provide particularized facts to oppose a government
15
official’s assertion of qualified immunity, a motion for summary judgment should
be granted. Brown v. Armenti, 247 F.3d 69, 78 (3d Cir. 2001).
The existence of factual disputes, supported by evidence in the record, may
render qualified immunity unavailable in some cases. Thus, “although qualified
immunity is a question of law determined by the court, when qualified immunity
depends on disputed issues of material fact, those issues must be determined by the
jury.” Monteiro v. City of Elizabeth, 436 F.3d 397, 405 (3d Cir. 2006); see also
Johnson v. Jones, 515 U.S. 304, 313 (1995) (qualified immunity may turn on
disputed issues of fact); Karnes v. Skrutski, 62 F.3d 485, 491 (3d Cir. 1995) (“While
the qualified immunity defense is frequently determined by courts as a matter of law,
a jury should decide disputed factual issues relevant to that determination.”).
Thus, when questions about the application of qualified immunity turn on
issues of motive that are themselves subject to dispute, summary judgment on the
defense is inappropriate. Monteiro, 436 F.3d at 405 (“Motive is a question of fact
that must be decided by the jury, which has the opportunity to hear the explanations
of both parties in the courtroom and observe their demeanor.”); see also Mitchell v.
Forsyth, 472 U.S. 511, 529 (1985) (improper intent is a pure question of fact);
Walker v. Horn, 286 F.3d 705, 710 (3d Cir. 2002); Ansell v. Ross Twp., No. ___,
2012 U.S. Dist. LEXIS 43127 at *80-81, 2012 WL 1038825 at *27 at *80-81 (W.D.
16
Pa. 2012) (“[I]t should be determined by a jury whether Demarco’s true motivation
for ejecting Ansell from the meeting was to suppress Ansell’s viewpoints.”).
When the underlying constitutional violation itself depends on evidence of
improper intent or motive, “it is sufficient for the plaintiff to identify affirmative
evidence from which a jury could find . . . the pertinent motive in order to survive
summary judgment . . . .” Monteiro, 436 F.3d at 405 (quoting Crawford-El, 523
U.S. at 600) (internal quotation marks omitted). Accordingly, where there exist
disputed issues of material fact regarding a defendant’s improper motive, and where
there are disputes issues of material fact regarding the proffered reasons given for
the defendants’ challenged actions, summary judgment is inappropriate.
Id.; see
also.
In this case, the plaintiff has presented sufficient evidence to support his claim
that the sanctions and other enforcement actions that Fowler and Hinton took with
respect to him and his properties lack any reasonable basis and were taken for
unlawful malicious and retaliatory purposes.
For example, the plaintiff has alleged that the defendants violated his right to
procedural due process guaranteed by the Fourteenth Amendment by condemning
properties or units within the plaintiff’s properties without affording the plaintiff
with a pre-deprivation hearing. The defendants argue that they are entitled to
qualified immunity on these procedural due process claims because it is not clear
17
that a pre-deprivation notice is required in cases involving exigent circumstances,
and where a post-deprivation remedy is available to an aggrieved property owner.
The defendants maintain that the record shows that they relied on competent
evidence that exigent circumstances existed, thus relieving them of any obligation
to provide a pre-deprivation hearing.
It has long been settled law that where a state can feasibly provide a predeprivation hearing before taking property, it generally must do so. See, e.g.,
Fuentes v. Shevin, 407 U.S. 67, 80-84 (1972) (hearing required before issuance of a
writ allowing repossession of property). It is also true that in some cases involving
exigent circumstances requiring officials to act quickly, a pre-deprivation hearing
may be deemed unnecessary and in such cases the existence of a post-deprivation
remedy may be adequate to protect a property owner’s due process interests. See
Logan v. Zimmerman Brush Co., 455 U.S. 422, 436 (1982) (“ ‘[T]he necessity of
quick action by the State or the impracticality of providing any predeprivation
process’” may mean that a post-deprivation remedy is constitutionally adequate)
(quoting Parratt v. Taylor, 451 U.S. 527, 539 (1981); see also Hudson v. Palmer, 468
U.S. 517 (1984) holding that a deprivation of a constitutionally protected property
interest caused by a state employee’s random, unauthorized conduct does not give
rise to a § 1983 procedural due process claim, unless the state fails to provide an
adequate post-deprivation remedy).
18
There is no question, therefore, that summary administrative enforcement
action may be taken in emergency situations. Where competent evidence allows an
official to reasonably believe that an emergency exists, discretionary invocation of
emergency procedures will only amount to a constitutional violation if the action is
arbitrary or an abuse of discretion. Elsmere Park Club, L.P. v. Town of Elsmere,
542 F.3d 412, 418 (3d Cir. 2008). “Where government officials are faced with a
decision in which a failure to act quickly could have serious health consequences,
perfection or near perfection is not the standard.” Id. at 420.
In this case, however, there is a fundamental factual dispute as to whether the
defendants reasonably could have believed that an actual emergency existed, and the
plaintiff has maintained that there is no evidence upon which the defendants could
have concluded that there was any danger to the life or health of any occupants of
his properties. Thus, with respect to the plaintiff’s Pittston Avenue apartments and
the property on Prospect Avenue, both of which the defendants allegedly condemned
because of a lack of egress, Brunelle testified that the properties were condemned at
the time he purchased them. (Doc. 92, Ex. 2, Dep. of Alexander Brunelle at 64:22,
146:19.) Brunelle further notes that the properties were released from condemnation
in 2012. (Id. at 64:24-65:3, 148:1-4.) Brunelle argues that it strains credulity to
believe that the properties would have been released from condemnation if they
were, in fact, a safety risk due to lack of egress. We agree that the defendants have
19
not demonstrated that it was undisputed that some emergent or exigent circumstance
arose which would have justified the re-condemnation of these properties without
the need for any pre-deprivation process. These factual disputes preclude a finding
that the defendants are entitled to qualified immunity on the plaintiff’s procedural
due process claims.
The defendants make similar arguments with respect to other properties,
arguing that Brunelle’s properties were condemned because of threats to the health,
safety or welfare of residents. Brunelle counters by noting that the defendants
engaged in a pattern of targeted enforcement against him, and repeatedly made
statements which indicated that their efforts to sanction him and condemn his
properties were not taken out of a concern for the residents’ welfare, but because
they had a vendetta against him. For example, a City of Scranton mechanical
inspector named Sheldon Roberts testified that Fowler “used to get very excited
when she was going out to do something to [Brunelle’s] properties. She got off on
it, because she just hated the man so much.” (Doc. 92, Ex. 6, Dep. of Sheldon
Roberts at 96:1-3.) He testified that Fowler boasted to people in the office that “she
enjoyed it more than sex.” (Id. at 96:4-11.) He further testified that Fowler
repeatedly made statements to suggest she was targeting Brunelle, referring to him
as her “buddy … in a sarcastic kind of way. You know, she’s going up to one of her
buddy’s properties to, you know, condemn it or violate them for something.” (Id. at
20
96:19-22.) Roberts noted that no other city inspector made any similar comments
about Brunelle or his properties. (Id. at 97:11-14.) Thus, Brunelle argues that there
is evidence that both undermines the defendants’ proffered justification for their
enforcement actions and would support a finding that these actions were motivated
by a vindictive desire to harass and penalize Brunelle for no justifiable reason.
Brunelle has also argued that the defendants targeted him specifically with the
posting of “failure to pay rental registration fees/intent to condemn” signs on his
properties, in a manner that was frequently unreasonable and motivated by
retaliatory animus. (Am. Compl., at ¶¶ 104-105, 112-155, 122-125, 212.) Although
Hinton has testified that inspectors did this to numerous landlords in Scranton based
upon a city ordinance, (Doc. 92, Ex. 5, Dep. of Patrick Hinton at 116-119), Sheldon
Roberts testified that Brunelle was subjected to specific targeting, (Id., Ex. 6, Dep.
of Sheldon Roberts at 104:2-10), and Brunelle testified specifically that he was the
only landlord in Scranton subjected to this practice, (Id., Ex. 2, Dep. of Alexander
Brunelle at 61:13-21.) This discrepancy in the record causes the defendants’ defense
of the practice in this case to be in dispute, and further raises questions regarding the
defendants’ actual motivation for posting the notices. The defendants claim it was
a straightforward enforcement of the city code, whereas Brunelle and Roberts have
suggested that this this justification is mere pretext for an unlawful pattern of
retaliatory conduct by the defendants. This dispute in the record regarding the
21
factual basis for the defendants’ actions, and their allegedly unlawful motives for
targeting Brunelle, make qualified immunity inappropriate.
Our analysis is similar with respect to Brunelle’s claims that for years
defendant Fowler targeted the plaintiff with meritless citations to the properties.
(Am. Compl. ¶ 203.) Brunelle claims that he has been subjected to a near decadelong campaign of malicious and retaliatory prosecution by Fowler, and he has
submitted an affidavit containing a detailed listing of these citations for a variety of
alleged violations, all of which either were adjudicated in his favor or were otherwise
dismissed. (Doc. 92, Ex. A.) The defendants argue that generally city officials may
reasonably issue citations for legitimate code violations, and hence they should be
granted qualified immunity from these claims. However, the fact that so many of
these citations were dismissed or adjudicated in Brunelle’s favor raises significant
questions about whether the citations were, in fact, being issued for a proper purpose
or even had a legitimate factual basis. As with the claims discussed above, the
factual basis for the defendants’ enforcement actions, and their motives for issuing
the citations, are squarely in dispute and preclude the Court from determining that
they are entitled to qualified immunity for these malicious prosecution and
retaliation claims.
Brunelle has pointed to other instances of allegedly arbitrary and irrational
treatment of him and his properties that he claims violated his constitutional rights,
22
and which call into question the defendants’ claim that they were merely enforcing
Scranton’s building and housing codes. For example, Brunelle testified that the
defendants unlawfully ordered the Lackawanna Avenue property to be demolished,
and he has alleged that Hinton did so out of personal malice towards him and not for
any legitimate reason. He notes that the defendants conducted no inspection of the
property prior to ordering it to be razed, and that after Hinton issued the order a city
engineer and a third-party inspector agreed with Brunelle’s own structural engineer
that the building was structurally sound. (Doc. 92, Ex. 5, Dep. of Patrick Hinton at
47:6-22.) Brunelle testified that the building was in exactly the same condition that
it had been in at the time he purchased it, but it was not slated for demolition until
after he acquired it. (Doc. 92, Ex. E, Feb. 1, 2018 Dep. of Alexander Brunelle at
52:24-53:3.) The defendants claim they are entitled to qualified immunity for claims
relating to this incident, based solely on Hinton’s testimony about his alleged
concerns that the building had suffered serious damage from an earlier fire. (Doc.
92, Ex. 5, Dep. of Patrick Hinton at 10-14.) The discrepancy in the parties’ evidence
regarding this incident, and regarding Hinton’s alleged motivation for ordering the
demolition without inspection, make qualified immunity inappropriate at this time.
We thus conclude that with respect to many of Brunelle’s claims sharp factual
disputes regarding the legitimacy of the defendants’ actions and their motives in
subjecting Brunelle and his properties to scores of citations, condemnations, and
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other sanctions, make this case unsuited for summary judgment or a finding that the
defendants are entitled to qualified immunity. We do, however, reach a different
conclusion with respect to one discrete incident regarding a warrantless entry into
one of the plaintiff’s properties on South Sumner Avenue. The defendants argue
that they are entitled to qualified immunity with respect to their warrantless entry
into this property because a man who held himself out to be a tenant of the property
consented to their request to conduct an inspection. (Doc. 88, at 12; Doc. 92, Ex. 5,
Dep. of Patrick Hinton at 150, 160.)
There appears to be no dispute that with respect to this search the defendants
had been granted permission to enter by a man claiming to reside there. While
Brunelle claims that the person was not, in fact, a tenant, (Doc. 92, Ex. 2, Dep. of
Alexander Brunelle at 304-306), there is no dispute that this individual had
represented that he was a tenant and consented to the defendants’ entry into the
property, and Brunelle has offered no evidence to show that the defendants’ reliance
on the tenant’s consent was unfounded or unreasonable.4 The law is well-settled that
even in the stricter criminal context, where officials obtain the voluntary consent of
an occupant who is reasonably believed to share authority over property, a
4
Moreover, the evidence shows that the individual who consented to the search
not only represented himself to be a tenant to the inspectors, but he signed a
permission for right of entry form, and further informed a local magistrate judge
that he was a tenant of the property. (Doc. 92, Ex. 5, Dep. of Patrick Hinton at
150, 166.)
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warrantless search is valid under the Fourth Amendment. Illinois v. Rodriguez, 497
U.S. 177, 186 (1990); United States v. Stabile, 633 F.3d 219 (3d Cir. 2011). Notably,
this Fourth Amendment benchmark is a wholly objective test, and eschews any
inquiry into subjective motivation. As the Supreme Court has observed: “As with
other factual determinations bearing upon search and seizure, determination of
consent to enter must ‘be judged against an objective standard: would the facts
available to the officer at the moment ... “warrant a man of reasonable caution in the
belief ” ’ that the consenting party had authority over the premises.” Illinois v.
Rodriguez, 497 U.S. 177, 188, 110 S. Ct. 2793, 2801, 111 L. Ed. 2d 148 (1990).
Therefore, the disputed issues of subjective motivation which preclude summary
judgment on Brunelle’s other legal claims simply are inapplicable here.
Accordingly, because no reasonable city inspector would believe that he or she
would be in violation of the Fourth Amendment for obtaining the express consent of
a person claiming to be a resident of a property before entering without a warrant,
we agree with the defendants that they are entitled to qualified immunity on any of
Brunelle’s claims based upon the warrantless entry into the South Sumner Street
property.
IV.
CONCLUSION
For the foregoing reasons, we conclude that the defendants’ partial motion for
summary judgment on qualified immunity grounds must be denied in all respects,
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with the exception of the plaintiff’s claim regarding the defendants’ entry into the
South Sumner property.
An appropriate Order follows.
/s/ Martin C. Carlson
Martin C. Carlson
United States Magistrate Judge
DATED: April 12, 2019
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