Novitsky v. City of Hazleton Police Department; et al

Filing 61

MEMORANDUM (Order to follow as separate docket entry) Signed by Honorable Julia K Munley on 6/4/24. (sm)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
No. 3:22cv492

CAROL NOVITSKY,
Plaintiff

(Judge Munley)
v.
(Magistrate Judge Carlson)
CITY OF HAZLETON POLICE
DEPARTMENT, CITY OF HAZLETON
CODE ENFORCEMENT, MS. NADINE
SIST, and CITY OF HAZLETON,
Defendants
MEMORANDUM
Before the court is a report and recommendation ("R&R") from Magistrate
Judge Martin C. Carlson in this 42 U.S.C. § 1983 ("Section 1983") action brought
by Plaintiff Carol Novitsky. Despite two extensions of time , plaintiff did not file
objections to the R&R. Instead , plaintiff, proceeding prose , filed a "consent
motion for leave to file [a] third amended complaint" pursuant to Federal Rule of
Civil Procedure 15(a)(2). Plaintiff, however, did not obtain the consent of
defendants and the proposed third amended complaint fails to correct numerous
flaws previously addressed by the court. Her motion to amend will be denied and
the R&R will be adopted.
Background
Plaintiff pursues this Section 1983 action against the City of Hazleton , its
police department, its code enforcement department, and an individual code

enforcement officer seeking damages and injunctive relief. Per the allegations in
plaintiff's second amended complaint (Doc. 36), she is the owner of two
residential parcels within the City of Hazleton. (~ at ,I 13). Although plaintiff
now resides in Massachusetts, she kept personal property at these addresses
and stayed there during her trips to Hazleton . (~ at ,I,I 12, 14-16).
In her second amended complaint, plaintiff details a series of what she
describes as continuing and escalating wrongs perpetrated against her by the
defendants beginning in July 2016. (~ at ,I,I 16-92). In summary , plaintiff claims
that the defendants entered her home on more than one occasion without a
warrant or exigent circumstances, threatened her with arrest, issued
unsubstantiated municipal code violation notices, and ultimately condemned the
properties. (1st) . Per plaintiff's allegations , these actions violated her
Constitutional rights .
Some additional procedural history helps explain this matter's present
posture. Plaintiff filed her original complaint on March 31 , 2022. (Doc. 1). She
filed an amended complaint as of right on June 27 , 2022. (Doc. 6). Defendants
then filed a motion to dismiss the amended complaint. (Doc. 13). The court
referred the matter to Chief Magistrate Judge Joseph F. Saporito, Jr.
Magistrate Judge Saporito issued a detailed R&R dated June 27, 2023 ,
regarding the motion to dismiss. (Doc. 34 ). The R&R ultimately recommended
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that plaintiff be granted leave to file an amended complaint against only the City
of Hazleton for claims arising after March 31 , 2020. (!fl at p. 16-18, 22- 27).
Although plaintiff failed to identify a policy or custom to establish municipal
liabi lity against the City of Hazleton in the amended complaint, the R&R
determined that "it [was] not clear that amendment would be inequitable or futile
with respect to any claims arising out of conduct occurring with[in] the two-year
period preced ing commencement of this action. " (!fl at p. 18- 21 ). The R&R
specifically rejected plaintiff's arguments regarding the continuing violations
doctrine, which , per plaintiff, would permit the pre-March 31 , 2020 claims to
proceed . (!fl at p. 24- 26). The R&R also recommended that plaintiff's claims be
dismissed as to Defendants Hazleton Police Department, "City of Hazleton Code
Enforcement" as duplicative, and in the case of Nadine Sist, the code
enforcement officer, duplicative (official capacity) and time-barred (personal
capacity). (!fl at p. 16- 18, 22- 26).
On August 17, 2023 , the Honorable Robert D. Mariani adopted the abovediscussed R&R . (Doc. 35). Specifically, Judge Mariani 's order stated that "the
second amended complaint is limited to claims arising out of conduct
occurring on or after March 31, 2020[.]" (!fl ,I 6)(emphasis in original).

Despite the roadmap provided by Magistrate Judge Saporito and the clear
directive from Judge Mariani (the law of the case), plaintiff nevertheless persisted
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with pursu ing pre-March 31 , 2020 claims against parties other than the City of
Hazleton in her second amended complaint. (Doc. 36). On October 5, 2023,
defendants filed a renewed motion to dismiss, which was referred to Magistrate
Judge Carlson . (Doc. 41 ). Judge Mariani then transferred this matter to the
undersigned on November 7, 2023.
On April 29 , 2024, the magistrate judge issued the R&R presently before
the court. (Doc. 54 ). He recommends that the motion to dismiss plaintiff's
second amended complaint be granted after revisiting many of the same areas of
the law previously addressed regarding the amended complaint. (~ at 12- 23).
Furthermore, Magistrate Judge Carlson detailed again how plaintiff failed to
plead facts supporting a Section 1983 against the City of Hazleton under a
policy-or-custom strand of municipal liability. (19..: at 23- 25). The magistrate
judge likewise addressed claims in the second amended complaint against Sist,
concluding that, although ambiguously raised, plaintiff's post-March 31 , 2020
allegations for violations of the Due Process Clause and the Fourth Amendment
failed to state a claim . (~ at 26- 29).
Objections to the R&R were due on May 14, 2024. Citing her relig ious
observances, work obligations, and difficulties "verifying information needed for a
necessary accompanying document[,]" plaintiff requested two extensions of time
to file objections to Magistrate Carlson's R&R. (Docs . 55 , 57). The cou rt granted
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the extensions , (see Docs. 56 , 58), but plaintiff did not file objections by the
deadline of June 3, 2024. Rather, in the early morning hours of June 4, 2024,
plaintiff filed a third amended complaint, (Doc. 59), and the above-mentioned
"consent motion for leave to file [a] third amended complaint[.]" 1 (Doc. 60). This
matter is now ripe for a decision.
Jurisdiction
As the case is brought pursuant to Section 1983, the court has jurisdiction
under 28 U.S.C . § 1331 ("The district courts shall have original jurisdiction of all
civil actions arising under the Constitution , laws, or treaties of the United
States.").

Under the Rules of Court for the Middle District of Pennsylvania , "[w]hen a party files a motion
requesting leave to file an amended pleading , the proposed amended pleading must be
retyped or reprinted so that it will be complete in itself including exhibits and shall be filed . . .in
the Electronic Filing System[] as an attachment to the motion." M.D. PA. L.R. 15.1 (a)
(emphasis added) . Additionally , "[t]he party filing the motion [to amend] . . shall provide : (1) the
proposed amended pleading as set forth [in Local Rule 15.1(a)], and (2) a copy of the original
pleading in which stricken material has been lined through and any new material has been
inserted and underlined or set forth in bold-faced type." M.D. PA. L.R. 15.1(b) (emphasis
added) .
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Plaintiff did not attach a copy of the third amended complaint to the motion to amend in
violation of Rule 15.1. Rather, she filed it as a separate document in the ECF. Additionally,
plaintiff did not comply with the requirements of Rule 15.1(b ). Per plaintiff however, "[t]he new,
added material will be with entries approximately 92 to 145, in the Background section .
Otherwise the document is identical to the Second Amended Complaint except for very
minor edits ." (Doc. 60) .

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Legal Standards
1. Reports and Recommendations

In disposing of objections to a magistrate judge's report and
recommendation , the district court must make a de nova determination of those
portions of the report to which objections are made. 28 U.S.C. § 636(b )(1 )(C);
see also Henderson v. Carlson , 812 F.2d 874, 877 (3d Cir.1987). The court may
accept, reject, or modify, in whole or in part, the findings or recommendations
made by the magistrate judge. The district court judge may also receive further
evidence or recommit the matter to the magistrate judge with instructions. 19.:
In deciding whether to adopt the report and recommendation when no
timely objection is filed , the court must determine if a review of the record
evidences plain error or manifest injustice. FED. R. CIv. P. 72(b ), 1983 Advisory
Committee Notes ("When no timely objection is filed , the court need only satisfy
itself that there is no clear error on the face of the record to accept the
recommendation") ; see also 28 U.S.C. § 636(b)(1 ); Sullivan v. Cuyler, 723 F.2d
1077, 1085 (3d Cir. 1983).
2. Motions to Amend

Leave of the court or consent of the defendants is required under Federal
Rule of Civil Procedure 15(a)(2) when a party seeks to amend a pleading outside
of the timeframe when Rule 15(a)(1) allows one amendment as a matter of
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course. Despite labelling her motion to amend as a "consent motion ," plaintiff did
not obtain the consent of the defendants. Under Rule 15(a)(2), however, courts
are instructed to "freely give leave when justice so requires ." FED. R. CIv. P.
15(a)(2).
Leave to amend should be freely given absent any "undue delay , bad faith
or dilatory motive on the part of the movant, repeated failure to cure deficiencies
by amendments previously allowed , undue prejudice to the opposing party by
virtue of allowance of the amendment, [or] futility of amendment[.]" Farnan v.
Davis, 371 U.S. 178, 182 (1962).
"In assessing futility [of amendment] , the district court applies the same
standard of legal sufficiency as applies under Rule 12(b )(6). " In re Burlington
Coat Factory Sec. Litig. , 114 F.3d 1410, 1434 (3d Cir. 1997)(citation and internal
quotation marks omitted). "By adhering to a Rule 12(b )(6) standard , the court is
assured that any new claims, without true merit, will fail. " Provenzano v.
Integrated Genetics, 22 F.Supp.2d 406 , 411 (D .N.J . 1998) (citations omitted).
The court tests the sufficiency of the complaint's allegations when
considering a Rule 12(b )(6) motion . To survive a motion to dismiss, a complaint
must contain sufficient factual matter, accepted as true, to state a claim to relief
that is plausible on its face. Ashcroft v. Iqbal, 556 U.S. 662 , 678 (2009) (citing
Bell Atl. Corp. v. Twombly, 550 U.S. 544 , 570 (2007)). A claim has facia l
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plausibility when factual content is pied that allows the court to draw the
reasonable inference that the defendant is liable for the misconduct alleged. Id.
(citing Twombly, 550 U.S. at 570). "Threadbare recitals of the elements of a
cause of action, supported by mere conclusory statements , do not suffice." !ft
(citing Twombly, 550 U.S. at 555).

Analysis
1. The Report and Recommendation
After a careful review, the court does not find a clear error on the face of
the record nor a manifest injustice, and therefore, the court will accept Magistrate
Judge Carlson 's R&R and adopt it in its entirety. Consequently, defendants'
motion to dismiss the second amended complaint will be granted .

2. Plaintiff's Motion to Amend
Plaintiff seeks leave to file a third amended complaint. (Doc. 60). She
argues:
these amendments are necessary here not only to display
Defendants' continuing actions during 2023 in the mode of
the actions described in the first [doc. 6] and second [doc.
36] Amended Complaints, but to give a deeper view of the
formal "continuing action" issue/concept as discussed in
Plaintiff's upcoming Response to the Report and
Recommendation [doc. 54]. Otherwise the Court will see
an inaccurate picture of the case, almost as if truncated in
2022.
The new, added material will be with entries approximately
92 to 145, in the Background section. Otherwise the
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document is identical to the Second Amended Complaint
except for very minor edits.

Yet, the proposed pleading suffers from the same deficiencies noted by
Judge Mariani, Magistrate Judge Saporito, and Magistrate Judge Carlson
regarding : 1) time-barred claims ; 2) judicial abstention from setting aside state
court default judgments for housing code violations ; 3) duplicative, improper
defendants; and 4) deficient fact pleading in articulating a mun icipal liability claim
against the City of Hazleton or a Section 1983 claim against Sist in her individual
capacity. To the extent that the proposed third amended complaint violates the
law of case and represents plaintiff's second repeated failure to cure deficiencies,
the motion to amend will be denied .
Moreover, the new facts in the proposed third amended complaint likewise
fail to identity a municipal policy or custom integral to a Section 1983 claim
against the City of Hazelton and fail to state a claim against Sist in her individual
capacity. These new facts address the sale of one of the two residential parcels
on September 21 , 2023 by plaintiff and the inspection of that premises by the city
pursuant to a city ordinance that was triggered by that sale. (~

,m 92-146). Per

plaintiff, two code officers (and not Sist) arrived at the premises on that date and
plaintiff admits she was unable to "clean or neaten up the property" or address a
"mess of upset boxes in the house" apparently created by a burglar. (~
9

,m 94-

96). Observing these boxes of academic papers scattered around filing cabinets ,
one of the code enforcement officers allegedly asked plaintiff, "[a]re you a
hoarder?" and authored a report provided to the buyer that the house contained a
hoarding situation. (~

,m 95 , 98-100, 102-104, 107).

After the sale, that code

enforcement officer allegedly interfered in the private agreement between plaintiff
and the new owner permitting plaintiff to repack her belongings at the premises
to move into a storage unit or into the adjacent parcel that plaintiff still owned . (~

,m 113-145).

Allegedly, pressure from this non-party Hazleton code enforcement

officer caused the new owner to give plaintiff difficulties in emptying the property
of her belongings before he began structural repairs , and the new owner has or
may have disposed of items dear to the plaintiff. (~ 1"[ 129).
Although these new paragraphs advise the court of a situation deserving
empathy and understanding , they fail to state a cognizable or plausible Section
1983 claim against the city or the code enforcement officer in her individual
capacity. Plaintiff's proposed amendments are futile and the motion to amend
will be denied . Additionally, because plaintiff has attempted a third amendment
and failed and previous court rulings have addressed repeated failu res to state a
claim , this action will be dismissed without leave to amend . See Forman 371
U.S. at 182; Grayson v. Mayview State Hosp., 293 F.3d 103, 114 (3d Cir.
2002)(setting forth the rule that plaintiffs who file complaints subject to dismissal
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under Rule 12(b )(6) should receive leave to amend unless amendment would be
inequitable or futile)
Conclusion

For the reasons set forth above, Magistrate Judge Carlson's R&R (Doc. 54)
will be adopted in its entirety. Defendants City of Hazleton , City of Hazleton
Code Enforcement and Nadine Sist's motion to dismiss (Doc. 41) will be granted .
Plaintiff's motion to amend (Doc. 60) will be denied. Plaintiff's repeated failures
to correct deficiencies and persistence in pleading futile claims results in further
leave to amend not being granted. Accordingly, this action will be dismissed, and
the Clerk of Court will be directed to close this case. An appropriate order
follows.

~UDG JULIA K. M
~ nited States D istr

,J

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