DeRaffele v. City of Williamsport et al

Filing 64

ORDER adopting in part rejecting in part Report and Recommendation 59 ; granting in part and denying in part defendnats' motion to dismiss 8 ; denying 25 Motion for Order to Show Cause; denying 38 Motion to resubmit original motion fo r restraining order; dismissing without prejudice 48 Motion to Dismiss for Lack of Jurisdiction; Amended Complaint is dismissed without prejudice with leave to re-file as directed below; City of Williamsport Appeals Board is dismissed from the act ion with prejudice; Plaintiff is directed to file a second amended complaint by the close of business October 15, 2015; if plaintiff does not choose to file a second amended complaint by October 15, 2015, the Court will dismiss the entire action with prejudice for failure to prosecute and failure to comply with this Order (see order for further/complete details). Signed by Honorable Matthew W. Brann on 9/30/15 (lg)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
JOHN DERAFFELE,

:
:
Plaintiff,
:
:
v.
:
:
CITY OF WILLIAMSPORT,
:
GABRIEL CAMPANA, individually, :
CITY OF WILLIAMSPORT
:
APPEALS BOARD,
:
POLICE CHIEF GREGORY
:
FORESMAN,
:
CAPTAIN TIMOTHY MILLER,
:
CAPTAIN MICHAEL ORWIG,
:
JOSEPH GIRARDI,
:
:
:
Defendants.
:

Civil Action No. 4:14-CV-1849
(Judge Brann)

(Magistrate Judge Schwab)

ORDER

September 30, 2015
I. BACKGROUND:
On September 23, 2014, Plaintiff, John DeRaffele, proceeding pro se filed
the above-captioned civil action. Shortly thereafter, on October 7, 2014, DeRaffele
filed an amended complaint, the subject of the instant Order. ECF No. 5.

1

DeRaffele names as defendants the City of Williamsport, Gabriel Campana1, the
City of Williamsport Appeals Board, Police Chief Gregory Foresman, Captain
Timothy Miller, Captain Michael Orwig, and Joseph Girardi (a City of
Williamsport Bureau of Codes officer).2
The matter has been jointly assigned to Magistrate Judge Susan E. Schwab,
who, on August 19, 2015, issued a report and recommendation on various pending
motions on the docket. Upon designation, a magistrate judge may "conduct

1

As point of reference for the non-local reader of this Order, Gabriel
Campana is the Mayor of the City of Williamsport. DeRaffele named Campana in
his individual, as opposed to official capacity. DeRaffele did not specify in his
amended complaint if the other individual defendants are intended to be named in
their individual or official capacities, or both. DeRaffele is directed to clarify his
intent should he choose to file a second amended complaint.
2

Defendants argue that all of the named individual defendants, if named in
their official capacity, should be dismissed from the action on the basis that
municipal officers in their official capacities are the functional equivalent of the
municipality, by citing to Will v. Michigan Dep’t of State Police 491 U.S. 58
(1989). Although Will doesn’t stand for the precise proposition that Defendants
use it for (Will holds that state officers are the functional equivalent of the state and
therefore are protected by Eleventh Amendment immunity), as Monell, not Will
applies to municipal officials, it is true that a claim against a municipal official can
be redundant to that of the municipality. However, here, it appears that DeRaffele
may have different allegations as to the individuals and the city past that of just the
unconstitutionality of the ordinance; for example, a First Amendment retaliation
claim could only be brought against individuals. Consequently, it is premature to
dismiss all the municipal officials until after the second amended complaint has
been filed. For the same reason, Defendants motion to dismiss for lack of
jurisdiction is also premature, as the Court is unclear as to the precise nature of
DeRaffele’s claims.
2

hearings, including evidentiary hearings, and . . . submit to a judge of the court
proposed findings of fact and recommendations." 28 U.S.C. 636(b)(1)(B). Once
filed, this Report and Recommendation is disseminated to the parties in the case
who then have the opportunity to file written objections. 28 U.S.C. 636(b)(1).
When objections are timely filed, the district court must conduct a de novo
review of those portions of the report to which objections are made. 28 U.S.C. §
636(b)(1); Brown v. Astrue, 649 F.3d 193, 195 (3d Cir.2011). Although the
standard of review for objections is de novo, the extent of review lies within the
discretion of the district court, and the court may otherwise rely on the
recommendations of the magistrate judge to the extent it deems proper. Rieder v.
Apfel, 115 F.Supp.2d 496, 499 (M.D.Pa. 2000) (citing United States v. Raddatz,
447 U.S. 667, 676 (1980)).
For portions of the report and recommendation to which no objection is
made, the court should, as a matter of good practice, "satisfy itself that there is no
clear error on the face of the record in order to accept the recommendation."
Fed.R.Civ.P. 72(b), advisory committee notes; see also Univac Dental Co. v.
Dentsply Intern., Inc., 702 F.Supp.2d 465, 469 (M.D.Pa.2010) (Conner, J.) (citing
Henderson v. Carlson, 812 F.2d 874, 878 (3d Cir.1987) (explaining that judges
should give some review to every report and recommendation)). Regardless of
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whether timely objections are made by a party, the district court may accept, not
accept, or modify, in whole or in part, the findings or recommendations made by
the magistrate judge. 28 U.S.C. § 636(b)(1); Local Rule 72.31.
Both parties have filed objections/responses to the report and
recommendation, which is now ripe for disposition. Magistrate Judge Schwab’s
report and recommendation is adopted in part and rejected in part.
II. DISCUSSION:
As an initial matter, to conserve judicial resources, the Court will not rehash
the recitation of alleged facts as set forth by the magistrate judge (ECF No. 59 at 211), but will adopt, and incorporate by reference, this portion of the report and
recommendation.3 In sum, DeRaffele is a landlord who owns several apartments
in the City of Williamsport. Although his complaint is not entirely clear, it appears
that he is alleging the unconstitutionality of a Rental Ordinance4 enacted by the
City, the unconstitutionality of a search of one of his tenant’s apartments, the

3

It is important to note, for the lay reader of this Order, that when presented
with a motion pursuant to Federal Rule of Civil Procedure 12(b)(6), as the Court is
here, the Court must accept the alleged facts as true. The test under 12(b)(6) is
merely a question of whether or not the plaintiff has alleged sufficient facts to state
a claim. The Court is not adopting or endorsing the veracity of the alleged (and
often caustic) facts as set forth by DeRaffele as true.
4

DeRaffele attached a copy of the Rental Ordinance to his complaint, ECF 51 at 1-29.
4

unconstitutionality of a condemnation of one of his properties, and possibly
retaliation based on his speech.
The amended complaint is a long, vitriolic, diatribe peppered with
obscenities5. Because DeRaffele “has filed his complaint pro se, the Court must
liberally construe his pleadings, and we will apply the applicable law, without
regard as to whether the pro se litigant has mentioned it by name.” Dluhos v.
Strasberg, 321 F.3d 365, 369 (3d Cir. 2003). Both Magistrate Judge Schwab and
the undersigned have attempted to cobble together DeRaffele’s statements into
legal causes of action.
As Magistrate Judge Schwab correctly pointed out, the overarching statute
that provides this Court with jurisdiction is 42 U.S.C. § 1983. (ECF No. 59 at 1314). Section 1983 “creates no substantive rights; it merely provides remedies for
deprivations of rights established elsewhere.” City of Oklahoma City v. Tuttle, 471
U.S. 808, 816, 105 S. Ct. 2427, 2432, 85 L. Ed. 2d 791 (1985). In order for
plaintiff to prevail under § 1983 he must establish two elements: first, that the
conduct complained of was committed by a person acting under color of state law;
and second, that the conduct deprived the plaintiff of rights, privileges, or

5

DeRaffele is admonished for his excessive, unnecessary and unpersausive
use of foul language, and is directed to excise any obscenities when he files his
second amended complaint, unless the word is used within a direct quotation.
5

immunities secured by the Constitution or laws of the United States. See Kost v.
Kozakiewicz, 1 F.3d 176, 184 (3d Cir. 1993).
The Court initially considers the role of the Defendant City of Williamsport.
It should be noted at the outset that § 1983 limits liability to “persons.” See 42.
U.S.C. § 1983. However, the United States Supreme Court held in Monell v. Dep't
of Soc. Servs. of City of New York that in enacting § 1983, Congress had intended
that “municipalities and other local government units to be included among those
persons to whom § 1983 applies.” 436 U.S. 658, 690, 98 S. Ct. 2018, 2035, 56 L.
Ed. 2d 611 (1978). Consequently, because DeRaffele has named the City of
Williamsport as a defendant based on it’s enactment of a Rental Ordinance, it can
be sued directly under § 1983 for monetary, declaratory, or injunctive relief where,
as here, “the action that is alleged to be unconstitutional implements or executes a
policy statement, ordinance, regulation, or decision officially adopted and
promulgated by that body's officers.”6 Id. That said, however, the undersigned

6

In this respect, the report and recommendation of the magistrate judge is
rejected in part, as the substance of the opinion recommends not dismissing
Defendant City of Williamsport based on the “government’s policy or custom.”
(See ECF No. 59 at 14) But it is not a “policy or custom” upon which the alleged §
1983 liability is premised against the City of Williamsport. It is premised, instead,
on the City’s ordinance. However, the recommendation of the magistrate judge,
that the action does survive against the City of Williamsport is adopted.
6

will adopt the recommendation of the magistrate judge to dismiss, with prejudice,
Defendant City of Williamsport Appeals Board as it is merely a subunit of the city
government. See, e.g., Johnson v. City of Erie, Pa., 834 F. Supp. 873, (1993).
DeRaffele’s First Amendment claims will be dismissed without prejudice
with leave to refile. It is completely unclear from the amended complaint what
First Amendment claim DeRaffele is attempting to state. Construing the amended
complaint liberally, it appears to the undersigned, as it did to Defendants, that
DeRaffele may be attempting to state a First Amendment retaliation claim based on
his speech. “A retaliation claim under 42 U.S.C. § 1983 must establish that the
government responded to the plaintiff's constitutionally protected activity with
conduct or speech that would chill or adversely affect his protected activity.” Balt.
Sun Co., 437 F.3d at 416, citing Constantine v. Rectors and Visitors of George
Mason Univ., 411 F.3d 474, 499 (4th Cir. 2005); ACLU v. Wicomico County, 999
F.2d 780, 785 (4th Cir. 1993). As written, however, DeRaffele’s First Amendment
claim is so puzzling and vague it will be dismissed with leave to amend.
DeRaffele’s Fourth Amendment claims will be dismissed in their entirety,
some with leave to refile, some with prejudice. DeRaffele pleads three distinct
alleged searches: a search pursuant to a search warrant of a tenant’s apartment; a
search pursuant to consent by a different tenant; and a third pursuant to a search
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warrant of a vacant apartment. As to the two searches of the two tenants’s
apartments, DeRaffele “lack[s] standing to assert his tenants' rights” Rozman v.
City of Columbia Heights, 268 F.3d 588, 591 (8th Cir. 2001) as “one cannot sue for
the deprivation of another's civil rights.” O'Malley v. Brierley, 477 F.2d 785, 789
(3d Cir. 1973) (internal citation omitted). Accordingly, any claims DeRaffele has
attempted to bring on behalf of his tenants are dismissed with prejudice.
As to the issue of the vacant apartment, DeRaffele claims that an illegal
search occurred because of the “false accusatory of a police official.” ECF No. 5 at
12. As Defendants correctly point out, DeRaffele has not alleged the personal
involvement of any of the named defendants in the allegedly illegal search.
“[P]ersonal involvement of defendants in alleged constitutional deprivations is a
prerequisite [] under § 1983" Williams v. Smith, 781 F.2d 319, 323 (2nd Cir. 1986)
as “respondeat superior does not give rise to supervisor liability under § 1983, and
a plaintiff must allege that supervisors were personally involved or at least
acquiesced in alleged violation.” Dotson v. Tennessee, No. 3:14-CV-02172, 2014
WL 6686744, at *2 (M.D. Tenn. Nov. 25, 2014), see also City of Canton, Ohio v.
Harris, 489 U.S. 378, 109 S.Ct. 1197, 103 L.Ed.2d 412 (1989) explaining Monell,
supra.
DeRaffele’s Fifth Amendment claim is completely unclear to this Court. As
8

addressed above, he does not have standing to raise his tenants’ Fifth Amendment
rights, so the only conceivable claim he could have is a takings clause claim7.
However, DeRaffele explicitly denied bringing a takings claim in his brief
opposing the motion to dismiss (ECF No. 56 at 10-12), yet claims the magistrate
judge erred when she wrote, based on his assertions, that he was not bringing a
takings claim (ECF No. 61 at 17-18). This is indistinct nonsense.
Be that as it may, our circuit courts demand a liberal construction of pro se
pleadings. As a result, the Court gives DeRaffele one further opportunity to press
forward and attempt to restate a takings claim, in spite of his incongruous and
contradictory statements.
Next, DeRaffele’s Fourteenth Amendment claims allege a lack of procedural
due process in condemnation proceedings. The Court again struggles to grasp the
nature of these allegations. It appears that DeRaffele may be alleging that the
condemnation proceedings were inadequate, although even that is an intellectual
stretch, as he admitted he did have a hearing, he volunteered for his property to be
condemned, and he failed to allege how any of the named defendants were

7

Defendants believe that DeRaffele may be bringing an inverse takings
claim. It is not evident to the Court what type of claim he is attempting to bring, as
he has made one set of arguments to Magistrate Judge Schwab and an opposite
argument to the undersigned.
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personally involved in an alleged procedural due process deprivation.
The magistrate judge recommended that this claim be dismissed with
prejudice. As delineated above, the Court will instead dismiss this claim without
prejudice with leave for DeRaffele to allege facts of a procedural due process
deprivation in a second amended complaint.
DeRaffele also contends that the rental ordinance is unconstitutional as it is
designed to use codes officers to enter apartments and search for drugs to bypass
the warrant requirement that police officers would be bound by; it is designed to
discriminate against African-Americans; and further intended to “force” landlords
to discriminate against minority and low income tenants. See Amended Complaint,
ECF No. 5 at 6-9. DeRaffele points to three portions of the ordinance (namely, §
2-1749.04, § 2-1749.05, and § 3-1749) that he believes to be unconstitutional.
The Defendants, the magistrate judge and the undersigned all read the complaint to
have intended different challenges
The Defendants read the amended complaint to intend a facial challenge.
The magistrate judge reads the complaint to intend both a facial and an as-applied
challenge. The undersigned interprets the complaint to intend a discriminatory
challenge to the application of the ordinance, an ‘as-applied’ challenge. In light of
the fact that none of the players in this drama are clairvoyant, the undersigned will
10

adopt the suggestion of the magistrate judge and will direct DeRaffele to clarify in
his amended complaint exactly what he believes is unconstitutional.
With regard to DeRaffele’s demand for punitive damages, Defendants argue
that pursuant to City of Newport v. Fact Concerts, Inc., 453 U.S. 247, 101 S. Ct.
2748, 69 L.Ed. 2d 616 (1981) punitive damage awards are barred for both
municipalities and the individual defendants who were named in their official
capacities. That statement is only partially correct. City of Newport does hold that
punitive damages are not available against municipalities, but it explicitly states
that “[i]f a government official acts knowingly and maliciously to deprive others of
their civil rights, he may become the appropriate object of the community's
vindictive sentiments.” Id. at 267. Punitive damages may be assessed against
officials, but only in the most serious of circumstances which evidence “reckless
or callous disregard for the plaintiff's rights, as well as intentional violations of
federal law, should be sufficient to trigger a jury's consideration of the
appropriateness of punitive damages” against officials in Section 1983 cases.
Smith v. Wade, 461 U.S. 30, 51, 103 S. Ct. 1625, 1637, 75 L. Ed. 2d 632 (1983).
In the matter at hand, the punitive damages demand against the named defendants
will be dismissed, as DeRaffele has failed to alleged the type of vindictive behavior
that would warrant a punitive damages instruction to a jury (should this action
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survive the filing of dispositive motions).
Finally, insofar as DeRaffele is trying to state a claim for an alleged lie told
him by Mayor Campana regarding the constitutionality of the Rental Ordinance, a
lie simply isn’t a claim upon which relief may be granted. The alleged “lie” is a
factual allegation, not a claim for relief. Accordingly, the “lie” count will be
dismissed.
III. CONCLUSION:
DeRaffele is warned that he will receive only one further opportunity to
construct a lucid complaint. “Judges are not like pigs, hunting for truffles buried
[].” United States v. Dunkel, 927 F.2d 955, 956 (7th Cir. 1991) (Posner, J.).
DeRaffele has now been notified of the deficiencies in his pleadings. If he is
unable to state a claim in his second amended complaint, it will be dismissed.
“Before a district court may dismiss a pro se complaint for failure to state a claim
upon which relief can be granted, the court must provide the pro se litigant with
notice of the deficiencies of the complaint and an opportunity to amend it if the
deficiencies can be cured, prior to dismissal.” Sevcik v. Unlimited Const. Servs.,
Inc., 462 F. Supp. 2d 1140, 1146 (D. Haw. 2006), citing Ferdik v. Bonzelet, 963
F.2d 1258, 1261 (9th Cir.1992). “However, the court may deny leave to amend
where amendment would be futile.” Id. citing Flowers v. First Hawaiian Bank,
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295 F.3d 966, 976 (9th Cir.2002) (citing Cook, Perkiss & Liehe, Inc. v. N. Cal.
Collection Serv., Inc., 911 F.2d 242, 247 (9th Cir.1990) (per curiam)).
AND NOW, THEREFORE, IT IS HEREBY ORDERED THAT:
1.

The Report and Recommendation of Magistrate Judge Susan E.
Schwab is ADOPTED in part and REJECTED in part. ECF No. 59.

2.

Defendants’ Motion to Dismiss is GRANTED in part and DENIED in
part. ECF No. 8.

3.

Plaintiff’s Motion for Order to show Cause is DENIED. ECF No. 25.

4.

Plaintiff’s Motion to Resubmit the Original Motion for Retraining
Order is DENIED. ECF No. 38.

5.

Defendants’ Motion to Dismiss for Lack of Jurisdiction is
DISMISSED without prejudice. ECF No. 48.

6.

Plaintiff’s amended complaint is DISMISSED without prejudice with
leave to re-file one, as directed below.

7.

The City of Williamsport Appeals Board is DISMISSED from the
action with prejudice.

8.

All claims brought on behalf of Plaintiff’s tenants are DISMISSED
from the action with prejudice.

9.

Plaintiff’s First Amendment claim is DISMISSED without prejudice
13

with leave to refile.
10.

Plaintiff’s Fourth Amendment claim brought on his own behalf is
DISMISSED without prejudice with leave to refile.

11.

Plaintiff’s Fifth Amendment claim brought on his own behalf is
DISMISSED without prejudice with leave to refile.

12.

Plaintiff’s challenges to the constitutionality of the rental ordinance
are DISMISSED without prejudice with leave to refile.

13.

Plaintiff’s demand for punitive damages is DISMISSED in its entirety
with prejudice.

14.

Plaintiff’s claims based on Mayor Campana’s alleged lie are
DISMISSED with prejudice.

15.

Plaintiff is directed to file a second amended complaint by the close of
business October 15, 2015. To that end,
a.

the plaintiff’s second amended complaint shall be complete, in
and of itself, without reference to any prior filings;

b.

the plaintiff’s second amended complaint must include
appropriate allegations of the defendants personal involvement;

c.

the plaintiff’s second amended complaint must specifically
state, in separate numbered counts, which constitutional right
14

he alleges the Defendants have violated and which Defendants
he alleges are involved in each count;
d.

in accordance with Fed.R.Civ.P. 8(d), each averment of the
plaintiff’s amended complaint shall be simple, concise and
direct;

e.

Plaintiff is admonished and directed to avoid use of obscene
language, unless intended to be a direct quotation and only in
that context;

f.

should the plaintiff fail to file his amended complaint within the
required time period, or fail to follow the above mentioned
procedures, this action will be dismissed.

16.

If Plaintiff does not choose to file a second amended complaint by
October 15, 2015, the Court will dismiss the entire action with
prejudice for failure to prosecute and failure to comply with this
Order.

BY THE COURT:
15

s/ Matthew W. Brann
Matthew W. Brann
United States District Judge

16