that plaintiff's claim must fail because plaintiff came to federal court rather than appealing an adverse decision to the zoning hearing board and then to the Court of Common Pleas. Parratt has nothing to do with exhaustion of state remedies as a jurisdictional prerequisite. Parratt deals with the definition of a constitutional deprivation.
Plaintiff's complaint alleges that Falls Township, through its Board of Supervisors, adopted a policy of excluding all purveyors of "X-rated" and "Adult" video cassettes and that the Code Enforcement Officer's decision implemented this policy. See Complaint para. 17. This allegation of a policy makes Parratt inapplicable on a motion to dismiss. Parratt dealt only with "a tortious loss of . . . property as a result of a random and unauthorized act by a state employee . . . not a result of some established state procedure." 451 U.S. at 541; see also Logan v. Zimmerman Brush Co., 455 U.S. 422, 435 (1982). By alleging a policy, plaintiff has alleged an authorized act resulting from an established governmental procedure.
Should plaintiff fail to establish a policy to deprive him of his constitutionally protected property or liberty interests, Parratt may have some emanations in this zoning context. Several federal courts have considered the possibility that denials of zoning permits, at least at the initial stage before administrative appeals, do not work constitutional deprivations unless authorized by an unconstitutional ordinance or policy. See, e.g., Albery v. Reddig, 718 F.2d 245 (7th Cir. 1983); Scott v. Greenville County, 716 F.2d 1409, 1419 (4th Cir. 1983); Creative Environments, Inc. v. Estabrook, 680 F.2d 822, 829-834 (1st Cir. 1982), cert denied, 459 U.S. 989, 74 L. Ed. 2d 385, 103 S. Ct. 345 (1982); LaSalle National Bank v. County of Lake, 579 F. Supp. 8 (N.D. Ill. 1984); see also Brown v. Brienen, 722 F.2d 360, 369 (7th Cir. 1983) (Flaum, J. concurring); Chiplin Enterprises v. City of Lebanon, 712 F.2d 1524, 1527 (1st Cir. 1983); Deerfield Medical Center v. City of Deerfield Beach, 661 F.2d 328, 331 n. 4 (5th Cir. 1981).
For the foregoing reasons, the accompanying Order will deny defendants' motion to dismiss on exhaustion grounds.
2. Motion to Dismiss the Township
Plaintiff has joined Falls Township as a defendant. Defendants have moved to dismiss all claims against the Township on the ground that plaintiff has failed to allege a custom or policy sufficient to satisfy Monell v. Department of Social Services, 436 U.S. 658 56 L. Ed. 2d 611, 98 S. Ct. 2018 (1978). As the foregoing discussion demonstrates, plaintiff has alleged such a policy. Therefore, I will deny the motion to dismiss the Township.
3. Motion to Dismiss the Individual Defendants
Plaintiff has joined as defendants all members of the Falls Township Board of Supervisors and the Township's Code Enforcement Officer. Defendants have moved to dismiss all claims against these individuals on the ground that these individuals have absolute immunity from suit under section 1983 or section 1985.
To the extent that they exercise legislative functions, municipal legislators have absolute immunity from liability under section 1983, and consequently under section 1985. Aitchison v. Raffiani, 708 F.2d 96, 98-100 (3d Cir. 1983); see also Skrocki v. Caltabiano, 568 F. Supp. 703, 706 (E.D. Pa. 1983) (borough council members have no absolute immunity for defamatory statements made in the course of terminating employee because action is administrative not legislative).
The members of the Board of Supervisors have legislative authority to establish a zoning policy. They must have participated in a legislative capacity, if at all, in the alleged unconstitutional policymaking. Mr. Witman, the Code Enforcement Officer, presents a different case. He may have had some legislative authority. On the other hand, he may have acted in an administrative role. The current record does not permit a determination of his precise involvement in the alleged policymaking. Accordingly, I cannot grant the motion to dismiss him as a defendant.
For the reasons stated in the accompanying Memorandum:
1. Defendants' motion to dismiss plaintiff's claims under 42 U.S.C. §§ 1983, 1985 alleging adoption by Falls Township through the individual defendants of an unconstitutional policy leading to the denial of plaintiff's application for a use and occupancy permit is DENIED.
2. Defendants' motion to dismiss Falls Township as a defendant is DENIED.
3. Defendants' motion to dismiss all claims against defendants Banko, Chimera, Goulding, Saxman, and Wamsley is GRANTED.
4. Defendants' motion to dismiss all claims against defendant Witman is DENIED.