CAMPBELL v. CONROY et al
Filing
36
MEMORANDUM OPINION re 28 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM, or Alternatively for Summary Judgment MOTION filed by WILLIAM E. MITCHELL, SR., ROBIN BERGSTROM, TOWNSHIP OF HARRISON, GEORGE E. CONROY, NORB CIESLINSKI, WILLIAM R. POST ON, GARY J. LILLY, JOE MARINO, FAITH A. PAYNE. Defendants' motion to dismiss [ECF No. 28] will be granted. Plaintiff may file an amended complaint within twenty days of the entry of the order accompanying this memorandum opinion. Signed by Chief Judge Joy Flowers Conti on 8/20/2015. (cal)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
CRAIG CAMPBELL,
Plaintiff,
v.
GEORGE E. CONROY, et al.,
Defendants.
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Case No. 2:13-cv-1560-JFC
MEMORANDUM OPINION
CONTI, Chief District Judge.
I. Introduction
This civil action arises out of a dispute between plaintiff Craig Campbell (“plaintiff”) and
various officials of Harrison Township, Pennsylvania (the “Township”) concerning a parcel of
property located in the Township and owned by plaintiff. In his pro se amended complaint,
plaintiff names as defendants George E. Conroy (“Conroy”), William R. Poston (“Poston’),
Robin Bergstrom (“Bergstrom”), William E. Mitchell, Sr. (“Mitchell”), Gary J. Lilly (“Lilly”),
Faith A. Payne (“Payne”), Joe Marino (“Marino”), Norb Cieslinski (“Cieslinski”), and the
Township (collectively “defendants”). He contends that defendants violated his constitutional
rights as secured by the Fifth and Fourteenth Amendments by withholding insurance proceeds
after a fire on his property, failing to provide adequate police protection, singling him out for
code violation enforcement, and passing an ordinance that effectuated a total economic taking of
his property.
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Presently pending before the court is defendants’ motion to dismiss or, alternatively,
motion for summary judgment (ECF No. 28.) This court has jurisdiction pursuant to 28 U.S.C. §
1331. For the reasons that follow, defendants’ motion to dismiss will be granted.
II.
Factual Background Derived from the Complaint and Accepted as True for
Purposes of Resolving the Motion to Dismiss
Because plaintiff is proceeding pro se, the factual allegations in his amended complaint
are to be liberally construed. Erickson v. Pardus, 551 U.S. 89, 94 (2007). Plaintiff is the owner
of property located at 58-60 Garfield Street in the Township. (ECF No. 27 ¶ 5.) Defendants
Conroy, Poston, Bergstrom, Mitchell and Lilly are members of the board of commissioners for
the Township. (Id. ¶¶ 7, 44.) Defendant Payne is the executive secretary for the Township, and
defendants Marino and Cieslinski are employed by the Township as zoning and code
enforcement officers. (Id. ¶¶ 2, 5, 9.)
Prior to the events underlying this litigation, plaintiff’s property was damaged by two
separate fires. (ECF No. 1 ¶ 10.) A portion of the insurance proceeds for the fire damage was
placed into an escrow account controlled by the Township, as required by state law. (Id. ¶ 11.)
Plaintiff was informed that those funds would be disbursed to him upon completion of
appropriate fire remediation. (ECF No. 27 ¶¶ 1-5.) Payne instructed plaintiff that he could
obtain the remainder of the escrowed insurance funds by having the property inspected by “code
enforcement” and providing the Township with a receipt for the repairs. (Id. ¶ 4.)
In the meantime, plaintiff put the property up for sale in April 2013. (Id. ¶ 38.) On
August 28, 2013, the Township enacted Ordinance 1963, § 201, entitled “Transfer of Ownership
of Certain Properties” (“Ordinance 1963” or the “Ordinance”). Ordinance 1963 imposes
limitations on a property owner’s ability to transfer a property that is not in compliance with all
2
applicable building codes, property maintenance regulations, and dangerous building
ordinances.1 (Id. ¶ 39.) Plaintiff contends that Ordinance 1963 prevents him from selling his
property and has stripped it of all economic value. (Id. ¶¶ 41-43.)
On September 18, 2013, plaintiff met with Cieslinski and Marino at the property to
inspect the repairs that had been completed. (Id. ¶ 5.) Marino and Cieslinski pointed out various
code violations persisting on plaintiff’s property. (Id. ¶ 9.) Cieslinski made additional repair
demands that plaintiff categorized as “impossible.” (Id.) Cieslinski started yelling at plaintiff
and his wife and behaving in a threatening manner. (Id.)
In response to the code violations noted by the zoning officers, plaintiff’s wife pointed to
several other properties in the area and asked whether there had been any citations for code
violations on those properties. (Id. ¶ 10). Cieslinski replied, “no.” (Id.) Plaintiff also showed
Marino and Cieslinski several instances where neighbors had dumped grass clippings, dog
droppings, and tree branches over the fence onto plaintiff’s property. (Id. ¶ 13.) Cieslinski and
Marino refused to investigate those allegations and instead cited plaintiff for the dumping and
damage. (Id. ¶ 14.)
Following his meeting with Marino and Cieslinski, plaintiff presented his complaints to
the Township’s board of commissioners at public meetings held on September 20, 2013 and
October 28, 2013. (Id. ¶¶ 6, 23, 40.) Each of the commissioners – Conroy, Poston, Bergstrom,
Mitchell, and Lilly – was present at both meetings. (Id. ¶¶ 7, 23, 26.) In addition to his
complaints about Marino and Cieslinski, plaintiff explained that his property had been broken
into numerous times and that tools, pipes, plumbing, wiring, and household appliances valuing
1
Ordinance 1963 is a matter of public record and may be relied upon by the court to decide a Rule 12(b)(6) motion
to dismiss. See, e.g., Sands v. McCormick, 502 F.3d 263, 268 (3d Cir. 2007).
3
over $8,000 had been stolen, but no police officer had ever come out to investigate. (Id. ¶ 18.)
The commissioners responded by laughing at plaintiff and making jokes about his business
practices. (Id. ¶ 24.) Plaintiff suggests that the commissioners’ hostility stems from the fact that
he once ran for public election against a candidate endorsed by Conroy. (Id. ¶ 27.)
III. Procedural Background
Plaintiff filed his original four-count complaint on October 28, 2013. (ECF No. 1.) In
Count One he asserted a violation of his substantive due process rights based upon the
Township’s failure to provide police patrols to protect his property. (Id. ¶¶ 1-2.) In Count Two
he asserted a procedural due process claim based upon the Township’s retention of his fire
insurance proceeds and Payne’s failure to advise him about the proper procedure to follow to
receive those funds. (Id. ¶¶ 12-15.) In Count Three he asserted a selective enforcement equal
protection claim based upon allegations that the Township singled plaintiff out by citing code
violations on his property despite other nearby properties being “far worse.” (Id. ¶¶ 18-23.) In
Count Four he asserted that Ordinance 1963 effectuated a total economic taking of his property.
(Id. ¶¶ 27-29.)
Defendants filed a motion to dismiss or, alternatively, motion for summary judgment on
November 19, 2013. (ECF No. 4.) In that motion, defendants challenged plaintiff’s complaint
on several grounds. First, they argued that plaintiff had not stated a viable Fourteenth
Amendment or Fifth Amendment violation and had failed to exhaust any remedies that might
have been available. (ECF No. 5 at 9-12.) They next argued that plaintiff’s Fifth Amendment
takings claim failed as a matter of law because Ordinance 1963 is a constitutionally valid
property regulation. (Id. at 12-14.) Finally, defendants argued that plaintiffs’ claims were barred
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by the Eleventh Amendment and that all the individual defendants were entitled to qualified
immunity. (Id. at 14-18.)
The court granted defendants’ motion to dismiss on December 23, 2014. (ECF No. 25.)
As a threshold matter, the court held that the defendants were not entitled to Eleventh
Amendment immunity and that defendants’ exhaustion and qualified immunity arguments were
premature and could be more appropriately addressed on a fully developed record. (Id. at 9-11.)
Nonetheless, the court concluded that plaintiff had generally failed to allege any plausible basis
for establishing liability against any of the defendants and, consequently, had failed to satisfy the
pleading requirements of Ashcroft v. Iqbal, 556 U.S. 662 (2009), and Bell Atlantic Corp. v.
Twombly, 550 U.S. 544 (2007). (Id. at 11-22.) The court granted defendants’ motion to dismiss,
but permitted plaintiff an opportunity to file an amended complaint addressing the deficiencies
highlighted in the court’s memorandum opinion. (Id. at 22-23.)
Plaintiff filed his amended complaint on October 14, 2014. (ECF No. 27.) In his
amended complaint, plaintiff again asserts violations of his rights under the Fifth and Fourteenth
Amendments to the United States Constitution. In Count One (referred to in the complaint as
“Part One”) he asserts a procedural due process claim based upon plaintiff’s allegation that
defendants have retained his fire insurance proceeds without cause. (Id. ¶ 7.) In Count Two he
asserts a violation of his equal protection rights premised on a theory of selective enforcement of
the law. (Id. ¶¶ 8-27.) Specifically, plaintiff contends that defendants have: (1) selectively
enforced code provisions against his property while ignoring violations on nearby properties; (2)
refused to investigate and cite his neighbors for dumping garbage on his property; and (3) failed
to provide adequate police protection and police response to prevent his property from being
victimized by thieves. (Id.) Finally, In Count Three he alleges that defendants effectuated a
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taking of his property by restricting the transferability of his property through the enactment of
Ordinance 1963 and violated his substantive due process rights by making “unreasonable”
demands with respect to the disbursement of his fire insurance proceeds. (Id. ¶¶ 30-31, 38-41.)
On October 30, 2014, defendants filed the instant motion to dismiss plaintiff’s amended
complaint. (ECF No. 28.) Plaintiff filed a response to the motion on January 15, 2015 (ECF No.
34), and defendants replied on January 27, 2015. (ECF No. 35.) This matter is ripe for review.
IV. Standard of Review
A motion to dismiss filed pursuant to Federal Rule of Civil Procedure 12(b)(6) tests the
legal sufficiency of the complaint. Kost v. Kozakiewicz, 1 F.3d 176, 183 (3d Cir.1993).2 In
deciding a motion to dismiss, the court is not opining on whether the plaintiff will be likely to
prevail on the merits; rather, when considering a motion to dismiss, the court accepts as true all
well-pleaded factual allegations in the complaint and views them in a light most favorable to the
plaintiff. U.S. Express Lines Ltd. v. Higgins, 281 F.3d 383, 388 (3d Cir. 2002). While a
complaint does not need detailed factual allegations to survive a Rule 12(b)(6) motion to dismiss,
a complaint must provide more than labels and conclusions. Bell Atl. Corp. v. Twombly, 550
U.S. 544, 555 (2007). A “formulaic recitation of the elements of a cause of action will not do.”
Id. (citing Papasan v. Allain, 478 U.S. 265, 286 (1986)). “Factual allegations must be enough to
2
Generally, a district court may not consider matters outside of the complaint when ruling on a Rule 12(b)(6)
motion to dismiss. “If, on a motion under Rule 12(b)(6)…, matters outside the pleadings are presented to and not
excluded by the court, the motion must be treated as one for summary judgment under Rule 56.” Fed. R. Civ. P.
12(d). When a motion to dismiss is treated as a motion for summary judgment, the “parties must be given a
reasonable opportunity to present all the material that is pertinent to the motion.” Id. This includes giving the party
opposing summary judgment an adequate opportunity to obtain discovery. See Brown v. U.S. Steel Corp., 462 F.
App’x 152, 155 (3d Cir. 2011) (citing Dowling v. City of Phila., 855 F.2d 136, 139 (3d Cir.1988)). Here, defendants
appended materials outside of the pleadings in support of their motion. The court will not consider these materials,
except for Ordinance 1963 of which the court takes judicial notice, without providing plaintiff an opportunity to
respond. Instead, the court will address defendants’ motion as a motion to dismiss in accordance with Rule 12(b)(6).
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raise a right to relief above the speculative level” and “sufficient to state a claim for relief that is
plausible on its face.” Id. “A claim has facial plausibility when the plaintiff pleads factual
content that allows the court to draw the reasonable inference that the defendant is liable for the
misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing 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. … Where a
complaint pleads facts that are “merely consistent with” a defendant's liability, it
“stops short of the line between possibility and plausibility of ‘entitlement to
relief.’”
Id. (quoting Twombly, 550 U.S. at 556–57) (internal citation omitted).
Two working principles underlie Twombly. Iqbal, 556 U.S. at 678. First, with respect to
mere conclusory statements, a court need not accept as true all the allegations contained in a
complaint. “Threadbare recitals of the elements of a cause of action, supported by mere
conclusory statements, do not suffice.” Id. (citing Twombly, 550 U.S. at 555.) Second, to survive
a motion to dismiss, a claim must state a plausible claim for relief. Id. at 679. “Determining
whether a complaint states a plausible claim for relief will ... be a content-specific task that
requires the reviewing court to draw on its judicial experience and common sense.” Id. “But
where the well-pleaded facts do not permit the court to infer more than the mere possibility of
misconduct, the complaint has alleged-but it has not ‘show[n]’-‘that the pleader is entitled to
relief.’” Id. (quoting Fed R. Civ. P. 8(a)(2)).
In this case, plaintiff is proceeding without the benefit of legal counsel. Pro se plaintiffs
are held to a less stringent standard than individuals who are represented by counsel. Fed.
Express Corp. v. Holowecki, 552 U.S. 389, 402 (2008) (“[P]ro se litigants are held to a lesser
pleading standard than other parties.”). Nevertheless, for Rule 12(b)(6) purposes, “a pro se
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complaint must still ‘contain sufficient factual matter, accepted as true, to state a claim to relief
that is plausible on its face.’” Salley v. Sec’y Pa. Dep’t of Corr., 565 F. App’x 77, 81 (3d Cir.
2014) (quoting Iqbal, 556 U.S. at 678); see Thakar v. Tan, 372 F. App'x 325, 328 (3d Cir. 2010)
(“[A] litigant is not absolved from complying with Twombly and the federal pleading
requirements merely because s/he proceeds pro se.”).
V. Discussion
Although the complaint does not specifically refer to 42 U.S.C. §1983, the court
construes the complaint as asserting claims under that statute. Section 1983 provides private
citizens a right of action against
[e]very person who, under color of any statute, ordinance, regulation, custom, or
usage, of any State or Territory or the District of Columbia, subjects, or causes to
be subjected, any citizen of the United States or other person within the
jurisdiction thereof to the deprivation of any rights, privileges, or immunities
secured by the Constitution and laws ... .
42 U.S.C. §1983. This statute does not create substantive rights; instead, it “provides only
remedies for deprivations of rights established elsewhere in the Constitution or federal laws.”
Kneipp v. Tedder, 95 F.3d 1199, 1204 (3d Cir.1996).
To state a viable claim under 42 U.S.C. § 1983, “a plaintiff ‘must allege the violation of a
right secured by the Constitution and laws of the United States, and must show that the alleged
deprivation was committed by a person acting under color of state law.’” Lomax v. U.S. Senate
Armed Forces Serv. Comm., 454 F. App’x 93, 95 (3d Cir. 2011) (quoting West v. Atkins, 487
U.S. 42, 48 (1988)). Because there is no question that the Township officials named as
defendants acted under color of state law, the relevant issue is whether plaintiff made sufficient
factual allegations to permit this court to infer he has a plausible claim for a deprivation of his
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constitutional rights. Here, plaintiff purports to assert violations of his rights under the Fifth and
Fourteenth Amendments. Each violation will be discussed in turn.
1. Plaintiff’s Procedural Due Process Claim
In Count One of the amended complaint, plaintiff alleges that his procedural due process
rights are being violated because the Township is withholding his fire insurance proceeds
pending repairs to a building on his property at 58-60 Garfield Street. Plaintiff avers that Payne
instructed him that she would release the funds once plaintiff had the property inspected by
“code enforcement” and provided her with a receipt. (ECF No. 27 ¶ 4.) Plaintiff states that he
met with code enforcement officers Cieslinski and Marino for the requested inspection, but they
made “impossible” demands and pointed out numerous code violations that still needed to be
addressed. (Id. ¶ 5.) Plaintiff complained to the board of commissioners, but his complaint was
ignored. (Id. ¶ 6.)
To state a procedural due process claim, plaintiff must allege that “(1) he was deprived of
an individual interest that is encompassed within the Fourteenth Amendment's protection of ‘life,
liberty, or property,’ and (2) the procedures available to him did not provide ‘due process of
law.’” Mulholland v. Gov’t Cty. of Berks, Pa., 706 F.3d 227, 238 (3d Cir. 2013). “A state
provides constitutionally adequate procedural due process when it provides reasonable remedies
to rectify a legal error by a local administrative body.” Virimindi, 521 F. App’x at 65 (quoting
DeBlasio v. Zoning Bd. of Adjustment for Twp. of W. Amwell, 53 F.3d 592, 597 (3d Cir.1995),
abrogated in part on other grounds by United Artists Theatre Circuit, Inc. v. Twp. of
Warrington, 316 F.3d 392, 400 (3d Cir.2003)). As the United States Supreme Court has
explained:
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In procedural due process claims, the deprivation by state action of a
constitutionally protected interest in ‘life, liberty, or property’ is not in
itself unconstitutional; what is unconstitutional is the deprivation of such
an interest without due process of law. The constitutional violation
actionable under § 1983 is not complete when the deprivation occurs; it
is not complete unless and until the State fails to provide due process.
Therefore, to determine whether a constitutional violation has occurred,
it is necessary to ask what process the State provided, and whether it was
constitutionally adequate.
Zinermon v. Burch, 494 U.S. 113, 125-26 (1990).
In the instant case, plaintiff’s allegation that the Township withheld his insurance
proceeds arguably satisfies the requirement of a deprivation of a property interest. However,
plaintiff’s amended complaint suffers from the same defect as his original complaint; namely, his
failure to supply any factual content about the procedures that are available to address the alleged
property deprivation. Plaintiff did not plead any facts that could plausibly show that those
procedures are constitutionally inadequate. See Vurimindi v. City of Phila., 521 F. App’x 62, 65
(3d Cir. 2013) (a plaintiff must show, as part of his procedural due process claim, that the state
procedure for challenging the alleged deprivation was “constitutionally inadequate”) (citing
authority). Because plaintiff offered no allegations that would permit a plausible inference that
he was denied a constitutionally adequate procedural remedy for the alleged deprivation of his
insurance money, Count One fails to state a viable claim under §1983.
2. Plaintiff’s Equal Protection Claims
In Count Two of the amended complaint plaintiff asserts that defendants violated his
Equal Protection rights through a pattern of selective law enforcement. First, plaintiff avers that
defendants cited his property for various code violations while refusing to cite four other nearby
properties. (ECF No. 27 ¶¶ 9-10.) He next contends that defendants refused to prevent his
neighbors from dumping garbage, lawn refuse, and dog droppings onto his property. (Id. ¶¶ 1310
14.) Finally, he alleges that defendants supplied inadequate police protection in his
neighborhood and failed to investigate several break-ins occurring on his property. (Id. ¶¶ 1722.)
“To establish a selective enforcement claim, a party must demonstrate ‘(1) that he was
treated differently from other similarly situated individuals, and (2) that this selective treatment
was based on an unjustifiable standard, such as race, or religion, or some other arbitrary factor ...
or to prevent the exercise of a fundamental right.’” Suber v. Wright, 574 F. App’x 207, 211 (3d
Cir. 2014) (quoting Dique v. N.J. State Police, 603 F.3d 181, 184 n. 5 (3d Cir.2010)). Persons
are “similarly situated” for equal protection purposes when “‘they are alike in all relevant
aspects.’” Id. (quoting Startzell v. City of Phila., 533 F.3d 183, 203 (3d Cir.2008)). At the
motion to dismiss stage, the plaintiff “must allege facts sufficient to make plausible the existence
of such similarly situated parties.” Perano v. Twp. of Tilden, 423 F. App’x 234, 238 (3d Cir.
2011).
In the instant case, plaintiff’s equal protection claim appears to be based on a “class of
one” theory. A plaintiff may obtain relief for equal protection violations as a “class of one”
where the plaintiff alleges “that [he] has been intentionally treated differently from others
similarly situated and that there is no rational basis for the difference in treatment.” Vill. of
Willowbrook v. Olech, 528 U.S. 562, 564 (2000). Thus, a plaintiff asserting a “class of one”
claim “must allege that (1) the defendant treated him differently from others similarly situated,
(2) the defendant did so intentionally, and (3) there was no rational basis for the difference in
treatment.” Hill v. Borough of Kutztown, 455 F.3d 225, 239 (3d Cir. 2006).
Here, plaintiff’s equal protection claims fail because he did not provide any factual
allegations suggesting that other similarly situated individuals were differently treated. For
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example, with respect to his allegations based on selective code violation enforcement, plaintiff
states that Marino and Cieslinski met with him on the property and advised him about several
code violations. (ECF No. 27 ¶ 9.) In response, plaintiff “pointed to four properties across the
alley and asked if they were being cited.” (Id.) Cieslinski answered, “no.” (Id. ¶ 10.) Based
entirely on this exchange, plaintiff contends that his equal protections rights have been violated.
He, however, did not provide any detail about the state of those other properties, i.e., whether
they were actually in violation of any code provisions, or whether they were subject to
inspection by ordinance officers on the basis of on an ongoing dispute over fire insurance
proceeds. Consequently, the court cannot evaluate whether they were “alike in all relevant
aspects.” Suber, 574 F. App’x at 211.
The same defect applies to plaintiff’s claims relating to the lack of police presence and
his issues with neighbors dumping trash on his property. Simply put, plaintiff did not allege
sufficient facts for the court to infer plausibly that other similarly situated individuals received
the police protection and intervention that he was denied. Absent more specific factual
allegations about the existence of allegedly similarly situated parties, no plausible inference can
be drawn that plaintiff is being treated differently than anyone else. See Perano, 423 F. App’x at
238-39.
3. Plaintiff’s Substantive Due Process Claim
In Part Three of plaintiff’s amended complaint he sets forth two separate claims. First,
plaintiff alleges that defendants violated his substantive due process rights when Cieslinski
instructed him that “he would not authorize the release of any fire money unless [plaintiff]
restored the building to its original use” as a rental property. (ECF No. 27 ¶ 31.) Plaintiff
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contends that defendants’ position is unreasonable, arbitrary, and amounts to a “taking.” (Id. ¶¶
35, 37.)
“[T]he touchstone of due process is protection of the individual against arbitrary action
of government.” Cnty. of Sacramento v. Lewis, 523 U.S. 833, 845 (1998) (internal quotation
marks and citation omitted). “[W]here the challenge is to executive rather than legislative action,
‘only the most egregious official conduct can be said to be arbitrary in the constitutional sense.’”
Nicini v. Morra, 212 F.3d 798, 810 (3d Cir. 2000) (en banc) (quoting Lewis, 523 U.S. at 846).
Accordingly, to establish a substantive due process claim under §1983, plaintiff must prove (1)
the particular interest at issue is protected by the Fourteenth Amendment, and (2) the
government’s deprivation of that protected interest shocks the conscience. Connection Training
Serv. v. City of Phila., 358 F. App’x 315, 319 (3d Cir. 2009); see Gottlieb v. Laurel Highlands
Sch. Dist., 272 F.3d 168, 172 (3d Cir.2001) (substantive due process is violated when state
conduct is “‘arbitrary, or conscience shocking, in a constitutional sense’”) (quoting Lewis, 523
U.S. at 847).
The Third Circuit Court of Appeals has instructed that the conscience-shocking standard
is typically satisfied by “only the most egregious official conduct,” such as corruption, selfdealing, or bias against a minority group. Eichenlaub v. Twp. of Indiana, 385 F.3d 274, 285-86
(3d Cir. 2004). In Eichenlaub, for example, the plaintiffs alleged that zoning officials “applied
subdivision requirements to their property that were not applied to other parcels; that they
pursued unannounced and unnecessary inspection and enforcement actions; that they delayed
certain permits and approvals; that they improperly increased tax assessments; and that they
maligned and muzzled the [plaintiffs].” Id. The court of appeals found that none of the
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aforementioned allegations shocked the conscience; to the contrary, they represented “examples
of the kind of disagreement that is frequent” in township land-planning disputes. Id. at 286.
Assuming plaintiff had pled a constitutionally protected property interest, his claim that
defendants are improperly withholding his fire insurance proceeds in response to his refusal to
restore the property to its original condition clearly falls well short of the conduct deemed
insufficient in Eichenlaub. There is no allegation that defendants engaged in self-dealing or
fraud, or discriminated against him on the basis of a protected characteristic. See, e.g., Maple
Props., Inc. v. Twp. of Upper Providence, 151 F. App’x 174, 179 (3d Cir. 2005) (finding that
land use decisions violate due process when they involve “corruption, self-dealing, or a
concomitant infringement on other fundamental individual liberties”). Plaintiff’s claim does not
rise to the level of a substantive due process violation simply because he alleges that defendants
failed to apply the same ordinances to another nearby property owner following a fire at
“Heights Plaza.” (Amended Compl. (ECF No. 27) ¶¶ 36-37). It is well-settled that “[l]and use
decisions are matters of local concern, and such disputes should not be transformed into
substantive due process claims based only on allegations that government officials acted with
‘improper’ motives.” United Artists Theatre Circuit v. Warrington, 316 F.3d 392, 402 (3d Cir.
2003). Thus, courts have repeatedly held that a township that enforces a regulation against one
landowner but not another does not engage in conscience shocking behavior. See, e.g.,
Eichenlaub, 385 F.3d at 286 (allegation that township “applied subdivision requirements to
[plaintiff’s] property that were not applied to other parcels” did not state a substantive due
process claim); Highway Materials, Inc. v. Whitemarsh Twp., 386 F. App’x 251, 258 (3d Cir.
2010) (defendants’ allegation that township “treated it differently from nearby [property]
owners” did not amount to a substantive due process violation); Kriss v. Fayette Cnty., 827
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F.Supp.2d 477, 494 (W.D. Pa. 2011) (“Even a scheme to improperly apply ordinances [or] treat a
property owner differently from nearby owners . . . does not amount to behavior that shocks the
conscience.”). In the absence of any allegations of conscience shocking behavior, plaintiff’s
substantive due process claim must be dismissed.
4. Fifth Amendment Takings Claim
In the second subsection of Part Three of his amended complaint, plaintiff attempts to
state a claim for a legislative taking pursuant to Williamson County Regional Planning
Commission v. Hamilton Bank of Johnson City, 473 U.S. 172, 197 (1985). This claim is based
entirely upon the Township’s enactment of Ordinance 1963. (ECF No. 27-1). In broad brush,
Ordinance 1963 places restrictions on the sale or transfer of a property that has been the subject
of a “Notice” from the Township regarding outstanding violations of applicable building codes,
property maintenance regulations, or dangerous building ordinances. Ordinance 1963 provides
that such properties may not be sold or transferred unless the property owner first obtains a
“Document of Property Compliance” from a Township building inspector. (ECF 27-1 at 3.) A
property owner may obtain a “Document of Property Compliance” by remedying the violations
outlined in the Notice, overturning the Notice through a court action, or by disclosing the
existence of the Notice to the proposed buyer. (Id. at 4.)
Plaintiff contends that the Ordinance “put a conveyance on the property without
compensating [him]” and that he is now “unable to transfer the property and . . . unable to repair
and enjoy [the] property.” (ECF No. 27 ¶ 43.) He alleges that the Township enacted Ordinance
1963 in direct response to his prior sale of another fire-damaged property and contends that
“[a]ny economic benefit [of his property] has been taken away by design” because “[n]obody in
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their right mind would purchase or even take ownership with this ordinance hanging over them.”
(Id. ¶¶ 40, 42-43.)
The allegations in plaintiff’s amended complaint are nearly identical to those that the
court deemed “conclusory” and “insufficient to plead a plausible Fifth Amendment violation” in
the course of dismissing his original complaint. (ECF No. 25 at 16.) As explained by the court:
[P]laintiff avers that “Harrison Township enacted an ordinance no. 1963”
(Compl. ¶ 27), which “transfers a conveyance to the deed without due
process and without compensation to the owner” (id. ¶ 28) and thus
constitutes a “total economic taking.” (Id.¶ 29.) Plaintiff claims that the
“[t]erms and conditions brought about by Township Ordinance No. 1963
makes any transfer of [his Garfield Street] property ... unsellable and
virtually worthless.” (Id. ¶ 31.) He asserts that a “taking has taken place
and the township owes the plaintiff full value of said property under
eminent domain.” (Id. ¶ 32.) These conclusory allegations are
insufficient to plead a plausible Fifth Amendment violation. Iqbal, 556
U.S. at 678 (“Threadbare recitals of the elements of a cause of action,
supported by mere conclusory statements, do not suffice.”) (citing
Twombly, 550 U.S. at 555).
(Id.) Plaintiff did not supply any additional factual content to elevate his allegations from the
possible to the plausible. See Iqbal, 556 U.S. at 678. Indeed, plaintiff failed to plead sufficient
factual detail for the court to determine whether Ordinance 1963 even applies to his property.
For example, Plaintiff does not allege that he has received a “Notice” from the Township
concerning any outstanding violations of applicable building codes, property maintenance
regulations, or dangerous building ordinances, or that he has attempted to obtain a “Document of
Compliance” and been denied.
Plaintiff’s conclusory assertion that “any economic benefit” has been stripped from the
property fails to plausibly allege that the Ordinance has eliminated all economically viable
options for his use of the property. Plaintiff indicates in his amended complaint that the property
has previously been used as a rental unit and that he would currently like to use it as a storage
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unit. (ECF No. 27 ¶¶ 30-34.) He does not explain how Ordinance 1963 has any impact on
either of those economically viable uses. In the absence of any such factual allegations, it cannot
be plausibly inferred that the Ordinance has stripped the property of all economic value. See,
e.g., Lucas v. S.C. Coastal Council, 505 U.S. 1003, 1019 (1992) (holding that “when the owner
of real property has been called upon to sacrifice all economically beneficial uses in the name of
the common good, that is, to leave his property economically idle, he has suffered a taking.”)
(emphasis in original); Cowell v. Palmer Twp., 263 F.3d 286, 291 (3d Cir. 2001) (refusing to find
a taking where the township decision at issue “may have prevented the plaintiffs from entering
into certain transactions, [but] did not foreclose all economically viable uses of the land.”).3
In short, plaintiff failed to remedy the deficiencies identified in his original complaint.
Consequently, his Fifth Amendment takings claim must be dismissed.
5. Leave to Amend
In light of plaintiff’s pro se status, the court will provide plaintiff with one additional
attempt to amend his complaint to state a viable claim for relief. Plaintiff is strongly admonished
that his amended pleading must conform to the pleading requirements of Iqbal and Twombly and
must set forth sufficient factual content to establish a plausible constitutional violation in light of
the principles discussed herein.
V. Conclusion
Based on the foregoing considerations, defendants’ motion to dismiss (ECF No. 28) will
be granted. Plaintiff may file an amended complaint within twenty days of the entry of the order
3
Defendants also contend that Ordinance 1963 does not effectuate a taking because it is a valid land usage
regulation. (ECF No. 29 at 21-24). The court has previously held that this fact-intensive inquiry would benefit from
a more fully developed record. (ECF No. 25 at 21-22). The same is true of defendants’ arguments based on
qualified immunity and exhaustion. (Id. at 9-11).
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accompanying this memorandum opinion. Failure to do so will result in the dismissal being with
prejudice.
An appropriate order follows.
/s/ JOY FLOWERS CONTI
Joy Flowers Conti
Chief United States District Judge
Dated: August 20, 2015
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