The opinion of the court was delivered by: BERLE M. SCHILLER, District Judge
On March 29, 2004, Plaintiffs Barbara and Allan Johnson moved to
proceed in forma pauperis and filed two separate actions against their
landlords, Defendants Isiah and Leonia Sadler, alleging, inter alia,
constitutional violations arising from an alias writ of possession
obtained against them for failure to pay rent. After reviewing
Plaintiffs' complaints, exhibits, and numerous other filings, which
essentially assert that Defendants obtained a defective alias writ of
possession and fraudulently raised Plaintiffs' rent, the Court
consolidated the two actions. (Johnson v. Sadler, 04-cv-1366,
Order dated April 6, 2004.)
In their first action, Plaintiffs bring claims for constitutional
violations, alleging that Defendants "illegally" obtained an alias writ
of possession. Specifically, Plaintiffs allege that the alias writ of
possession "attempts to illegally bar federal adjudications in re Default
Judgments against Defendants PUC and PECO a.k.a. Exelon Corporation in
01-5571 USDC." (Compl. (Docket No. 04-1366.) at 1.) In their second
action, entitled "Complaint in Condemnation pursuant to Federal Rule of
Civil Procedure 71A," Plaintiffs assert their alleged right to condemn
the property at issue under the power of eminent domain. (Compl. (Docket
No. 04-1367) at 1.) As part of the second action, Plaintiffs also filed,
inter alia, an emergency petition for a preliminary injunction. For the reasons set forth below, I grant Plaintiffs' motion to proceed in
forma pauperis and pursuant 28 U.S.C. § 1915(e)(2)(B), dismiss
Plaintiffs' claims as frivolous. In addition, I deny Plaintiffs'
emergency petition for a preliminary injunction.
After a court makes a determination that a plaintiff is eligible for
pauper status pursuant to 28 U.S.C. § 1915, the court must then
"screen" the complaint to determine whether the plaintiff's complaint is
frivolous, malicious, fails to state a claim upon which relief may be
granted, or seeks monetary relief from a defendant immune from such
relief pursuant to 28 U.S.C. § 1915(e)(2)(B). Under §
1915(e)(2)(B), a complaint is "frivolous" where "it lacks an arguable
basis either in law or in fact" and "embraces not only inarguable legal
conclusions but also fanciful factual allegations." Neitzke v.
Williams, 490 U.S. 319, 325 (1989).
In the present case, the factual allegations and legal conclusions
described in Plaintiffs' multiple filings are virtually unintelligible.
Plaintiffs assert that default judgments were obtained in their previous
case against PUC and PECO, Johnson v. PECO, E.D. Pa. Civ. A. No.
01-5571, which entitles them to some legal right in this case under the
Rooker-Feldman doctrine and the doctrines of res judicata and collateral
estoppel. Contrary to Plaintiffs' contention, however, review of this
prior action reveals that no such default judgments were obtained. In
fact, the previous case was dismissed as frivolous under §
1915(e)(2)(B). Johnson v. PECO, E.D. Pa. Civ. A. No. 01-5571,
Order dated July 16, 2002 (Dalzell, J.).
In addition, even granting Plaintiffs' filings the most liberal
construction, Higgins v. Beyer, 293 F.3d 683, 688 (3d Cir.
2002), the gravamen of Plaintiffs' claims is a dispute with their
landlords over a rent increase and a subsequent alias writ of possession
obtained by the landlords after Plaintiffs failed to pay their rent. Such
landlord-tenant disputes are not within the jurisdiction of this Court. Furthermore, although Plaintiffs assert violations of their Fifth,
Ninth, and Fourteenth Amendment rights, in order to bring an action for
constitutional violations under 42 U.S.C. § 1983, a plaintiff must
allege that a person acting under color of state law deprived him of his
constitutional rights. Kost v. Kozakiewicz, 1 F.3d 176, 185 (3d
Cir. 1993). Defendants, however, are private parties. In order to
properly state a claim against a private party under § 1983,
Plaintiffs must allege that: (1) Defendants have acted together with or
have obtained significant aid from state officials; or (2) Defendants'
conduct is, by its nature, chargeable to the state. Lugar v.
Edmondson Oil Co., 457 U.S. 922, 930(1982).
In this case, Plaintiffs have failed to allege any facts that would
subject a private landlord to liability under § 1983. Plaintiffs
merely allege that the landlord filed a complaint against them in state
court that "is defective on its face" because "notice was properly served
based [sic] a 10 day rather than a 30 day Notice as the law requires.
Therefore, Service of Process was not made." (Compl. (Docket No. 04-1366)
at 2-3.) However, even assuming that this service of process was
improper, "[a]n improper use or abuse by a private party of an otherwise
valid state procedure is not cognizable under § 1983." Jordan v.
Fox, Rothschild, O'Brien & Frankel, 792 F. Supp. 393, 395 (E.D.
Pa. 1992) (citing Lugar, 457 U.S. at 941), aff'd in part and
vacated in part, 20 F.3d 1250 (3d Cir. 1994); see also
Chicarelli v. Plymouth Garden Apartments, 551 F. Supp. 532, 537
(E.D. Pa. 1982) (holding that substantive misuse of Pennsylvania
confession of judgment procedures is not basis for § 1983 liability).
While state procedures permitting private parties to file complaints and
confess judgment involve acquiescence by the state, such private conduct
is not attributable to the state and cannot be considered state action.
Jordan, 792 F. Supp. at 395 & n.5 (holding that if this
conduct were state action, "presumably a private litigant who induced a
clerk of court ex parte to enter inappropriately a default judgment, e.g.
where proof of service had been falsified, would be subject to § 1983
liability" (citing Flagg Bros., Inc. v. Brooks, 436 U.S. 149,
164 (1978)); see also Chicarelli, 551 F. Supp. at 538 (holding
that private misuse of state procedure did not "constitute state action,
even though it involved substantial use of the state's enforcement
machinery" (quotations omitted). Thus, to be liable under § 1983, "a
private defendant must invoke a state procedure that is itself
unconstitutional, with significant aid from state officials."
Jordan, 792 F. Supp. at 395 (citing Lugar, 457 U.S. at
937). As Plaintiffs merely allege private misuse of a state procedure and
do not allege any state action, any claims for constitutional violations
under § 1983 are not cognizable.
Similarly, Plaintiffs' "complaint in condemnation" pursuant to Federal
Rule of Civil Procedure 71A lacks any arguable basis in law.
Rule 71A outlines the procedures for actions involving the Government's
exercise of its eminent domain power. FED. R. CIV. P. 71 A. As private
citizens, Plaintiffs cannot exercise the power of eminent domain to
condemn the property at issue. Therefore, Rule 71A provides no basis
for Plaintiffs' claims.
In conclusion, as Plaintiffs' filings lack arguable basis in law or
fact, I dismiss their claims as frivolous under § 1915(e)(2)(B).
Finally, because I dismiss all of Plaintiffs' claims as frivolous,
Plaintiffs' emergency petition for a preliminary injunction is also
denied. Gerardi v. Pelullo, 16 F.3d 1363, 1373 (3d Cir. 1994)
(holding that in deciding motion for preliminary injunction, district
court must first determine whether movant has shown reasonable
probability of success on the merits). An appropriate Order follows. ORDER
AND NOW, this 7th day of April, 2004, upon
consideration of Plaintiffs' filings and motions to proceed in forma
pauperis, it is hereby ORDERED that:
1. Pursuant to 28 U.S.C. § 1915, Plaintiffs' Motions to Proceed In
Forma Pauperis (Document No. 1) is GRANTED.
2. Plaintiffs' claims are DISMISSED as frivolous pursuant to
28 U.S.C. § 1915(e)(2)(B).
3. Plaintiffs' Emergency Petition for Preliminary Injunction is
4. The Clerk of Court is directed to close the case for ...