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HOMAN v. CITY OF READING

May 20, 1997

SANDRA HOMAN and KEVIN SCOTT, Plaintiffs,
v.
CITY OF READING, BOARD OF HEALTH OF THE CITY OF READING and COUNCIL OF THE CITY OF READING, Defendants.



The opinion of the court was delivered by: JOYNER

 JOYNER, J.

 MAY 20, 1997

 Plaintiffs Sandra Homan and Kevin Scott ("Homan" and "Scott" respectively, or "Plaintiffs" collectively) have brought this action against Defendants City of Reading (the "City"), Board of Health of the City of Reading (the "Board"), and Council of the City of Reading (the "Council") seeking compensatory and punitive damages and injunctive relief pursuant to 42 U.S.C. §§ 1982 and 1983. Before the Court is Defendants' Motion to Dismiss pursuant Federal Rule of Civil Procedure 12(b)(6) and for leave to seek attorney's fees and costs pursuant to 42 U.S.C. § 1988 and/or Federal Rule of Civil Procedure 11. Plaintiffs stipulate to the dismissal of the Board, the Council and Count II of the Complaint. We thus resolve the Motion only insofar as it seeks the dismissal of Counts I, III and IV against the City and leave to seek attorney's fees.

 Plaintiffs allege the following facts. Homan, a Caucasian woman, and Scott, an African-American man, have lived together as common law husband and wife for the past nineteen years. City officials have been aware of this relationship at all times relevant to this action.

 Sometime prior to May, 1996, Scott purchased the property at 1112-1134 Moss Street, Reading, Pennsylvania, at a tax sale and had the deed recorded in Homan's name. Scott remains the "beneficial owner" of this property. Compl., P 4. On May 25, 1996, the building (the "Warehouse") located on the premises was substantially destroyed in a fire. On or about May 29, 1996, Homan was served with notice (the "Board Order") that the Council, acting as the Board, had declared the Warehouse a public nuisance and directed that the structure be rehabilitated or demolished within thirty days. That same day, Homan was also served with notice that Ronald E. Miller, Director of Community Planning, Programming and Development, had determined that the Warehouse constituted a public nuisance. On June 3, 1996, Homan, through her counsel, appealed both decisions.

 Shortly after the receipt of both notices, Scott attempted to gain access to the Warehouse property in an effort to demolish the remaining structure and to clear the site of rubbish and debris. Scott, however, was "denied access to the Warehouse property by the City." Id. at P 15. When he finally gained access to the property on June 27, 1996--two (2) days before the expiration of the thirty day abatement period--Scott hired a fence contractor to install a fence around the property and rented dumpsters for the debris from the demolition and clean-up. The Reading City Engineer ordered Scott to remove the dumpsters sometime after June 27, 1996. The fence was ordered removed, Plaintiffs allege, by a City official "sometime after June 20, 1996." Id. at P 18.

 The Council held hearings on Homan's appeals on June 10 and 18, 1996. On July 8, 1996, the Council, "per se and as [the Board]," issued its "Findings of Fact, Conclusions of Law and Decision," in which it sustained Homan's appeal of the Miller Order but denied her appeal of the Board Order. *fn1" Shortly thereafter, the Council awarded an $ 87,000 contract to Northeast Industrial Services Corp. to demolish the Warehouse. Demolition was completed in September, 1996. The City intends to recover the cost of demolition of the Warehouse from Plaintiffs pursuant to 53 Pa. Con. Stat. Ann. § 37324. Plaintiffs estimate that the work could have been completed for $ 10,000, and that they would have done so had the City not prevented them.

 Based on this alleged series of events, Plaintiffs claim that the City, through the Board and the Council, violated their rights to procedural due process. Plaintiffs also allege that, in denying them access to the property until June 27, 1996, the City violated their substantive due process rights by discriminating against Scott based on his race and against Homan based on her relationship with Scott. Thus, in Count I, Plaintiffs seek compensatory and punitive damages pursuant to 42 U.S.C. § 1983 and attorney's fees pursuant to 42 U.S.C. § 1988.

 Plaintiffs make the following additional factual allegations in Count III. The City, through its Codes Services Unit, issued three "Non-Traffic Citations" to Homan for city ordinance violations in March and April of 1995. Across the street from Plaintiffs' residence, however, is a building (the "American Chain Building") owned "by a corporation controlled by a White person" which has never been cited for similar ordinance violations or declared a public nuisance despite being "in far worse physical condition than the [Warehouse] prior to the fire." Compl., P 37. Plaintiffs attribute the allegedly differential treatment to "defendants' policy, custom and/or practice of racial discrimination in the enforcement of local law." Id. at P 40. Thus, in Count III, they seek compensatory and punitive damages and attorney's fees pursuant to 42 U.S.C. §§ 1983 and 1988 for alleged violations of the Equal Protection Clause of the Fourteenth Amendment.

 DISCUSSION

 I. Standard for Rule 12(b)(6) Motion

 In considering a Rule 12(b)(6) motion, a court must primarily consider the allegations contained in the complaint, although matters of public record, orders, items appearing in the record of the case and exhibits attached to the complaint may also be taken into account. Pension Benefit Guar. Corp. v. White Consol. Indus., Inc., 998 F.2d 1192, 1196 (3d Cir. 1993). The Court must accept as true all of the allegations in the pleadings and must give the plaintiff the benefit of every favorable inference that can be drawn from those allegations. Schrob v. Catterson, 948 F.2d 1402, 1405 (3d Cir. 1991); Markowitz v. Northeast Land Co., 906 F.2d 100, 103 (3d Cir. 1990). A complaint is properly dismissed only if ...


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