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SPRADLIN v. BOROUGH OF DANVILLE

December 7, 2005.

GILFRED L. SPRADLIN, Plaintiff,
v.
BOROUGH OF DANVILLE, a municipal corporation, et al., Defendants.



The opinion of the court was delivered by: JAMES McCLURE JR., District Judge

MEMORANDUM

Gilfred Spradlin, pro se, initiated this civil action on December 9, 2002. In his amended complaint,*fn1 Spradlin named as defendants the Borough of Danville, Danville Borough Council, and various Borough officials, including Codes and Zoning Enforcement official Jeanne Kiewlak, and Danville Borough Solicitors Robert Marks and Michael Dennehy. The complaint alleges various federal and state claims under the Constitution of the United States and the Constitution and laws of the Commonwealth of Pennsylvania. The claims arise out of Spradlin's ownership of certain properties in the Borough of Danville, and the plethora of zoning and code disputes associated with those properties. All defendants filed motions to dismiss. All claims against defendants in their official capacities were dismissed as redundant on December 10, 2003. (Rec. Doc. No. 34.) Various counts were dismissed as time-barred, and others were dismissed due to the plaintiff's failure to allege the necessary elements of the claim. After "expending considerable effort honing plaintiff's accusations," the court allowed a number of claims to survive: substantive and procedural due process claims in Counts VII, IX, and XI; federal and state claims for an allegedly unreasonable administrative search of plaintiff's Water Street Property in Count IX; a tortious interference with contractual relations claim against the Danville Solicitors in Count X; a state claim for malicious prosecution in Count XI; and a free speech and equal protection claim in Count XIII. (Rec. Doc. No. 34, at 22-24.)

The parties have conducted discovery, and the plaintiff has deposed 23 persons. Now pending before the court are motions for summary judgment filed by the Borough of Danville, the Danville Borough Council, and Jeanne Kiewlak (collectively the "Borough Defendants"), and Borough Solicitors Marks and Dennehy (the "Solicitor Defendants"). The Borough Defendants have moved for dismissal of the claims against the Danville Borough Council as duplicative of the claims against the Borough itself. Also pending is the Borough Defendants' motion to strike portions of the plaintiff's counterstatement of facts. DISCUSSION:
I. THE DANVILLE BOROUGH COUNCIL'S MOTION TO DISMISS
  In its motion for summary judgment, the Borough Defendants argue that the claims against the Danville Borough Council are duplicative of the claims against the Borough of Danville, and should therefore be dismissed. (Rec. Doc. No. 91, at 5.) In response, Spradlin argues that because a municipality acts through its officials, it is essential to retain the Council as a defendant. (Rec. Doc. No. 107, at 4.) Spradlin's argument is misplaced. Because the Borough itself as a named defendant would ultimately be liable for any judgment entered against the Borough Council, the Council is a redundant party to the case. See Satterfield v. Borough of Schuylkill Haven, 12 F. Supp. 2d 423, 431 (E.D. Pa. 1998) (Van Antwerpen, J.). This dismissal does not in any way prejudice Spradlin's right to pursue his claims based on the alleged misconduct of the Borough Council. "However, since the Borough itself will be directly liable for any misconduct on the part of the Borough Council, the inclusion of both entities as Defendants is unnecessary." Id. All claims against the Danville Borough Council will therefore be dismissed.

  II. THE MOTIONS FOR SUMMARY JUDGMENT ON THE REMAINING CLAIMS A. LEGAL STANDARDS

  1. Summary Judgment

  A district court may properly grant a motion for summary judgment "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). The plain language of the rule "mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).

  At the summary judgment stage, "the judge's function is not himself to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). A genuine issue of material fact is one that may reasonably be resolved in favor of either party. Id. In determining whether there is a disputed issue of material fact, the court will draw all reasonable inferences and any ambiguities in favor of the nonmoving party. Am. Flint Glass Workers Union v. Beaumont Glass Co., 62 F.3d 574, 578 (3d Cir. 1995) (citation omitted). The party opposing a motion for summary judgment "must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). The nonmoving party "has the duty to set forth specific facts showing that a genuine issue of material fact exists and that a reasonable factfinder could rule in its favor." Ridgewood Bd. Of Educ. v. N.E. ex rel. M.E., 173 F.3d 238, 252 (3d Cir. 1999) (citations omitted); see also Fed.R.Civ.P. 56(e). "Speculation and conclusory allegations do not satisfy this duty." Ridgewood Bd. Of Educ., 173 F.3d at 252 (citation omitted). Furthermore, the "mere existence of a scintilla of evidence in support of the [nonmoving party's] position will be insufficient." Anderson, 477 U.S. at 252.

  In this case, plaintiff Gilfred Spradlin has proceeded pro se. "While pro se pleadings are entitled to liberal construction, the plaintiff must still set forth facts sufficient to withstand summary judgment." Shabazz v. Odum, 592 F. Supp. 1513, 1515 (M.D. Pa. 1984) (Caldwell, J.). The court has granted this pro se plaintiff every liberality in construing his filings.

  2. Section 1983

  Spradlin's remaining claims are brought under 42 U.S.C. § 1983. Section 1983 does not create substantive rights, but rather provides a remedy for the violation of rights created by federal law. Groman v. Twp. of Manalapan, 47 F.3d 628, 633 (3d Cir. 1995). The statute provides for a cause of action against persons who, acting under color of state law, deprive another individual of any rights, privileges, or immunities secured by the Constitution. 42 U.S.C. § 1983. In order for a plaintiff to prevail under Section 1983, he must establish two elements: (1) that the defendants were "state actors," and (2) that they deprived the plaintiff of a federal right. See Groman, 47 F.3d at 633.

  A. Spradlin Has Not Shown That The Solicitor Defendants are State Actors

  As an initial matter, the Solicitor Defendants argue that they are not state actors and cannot therefore be held liable under Section 1983. 43 U.S.C. § 1983 requires that Spradlin show that the Solicitor Defendants acted under the color of state law and denied him a federally protected constitutional or statutory right. Angelico v. Lehigh Valley Hosp., Inc., 184 F.3d 268, 277 (3d Cir. 1999) (citing Lugar v. Edmondson Oil Co., 457 U.S. 922, 930 (1982); Jordan v. Fox, Rothschild, O'Brien & Frankel, 20 F.3d 1250, 1264 (3d Cir. 1994)).

  The Solicitor Defendants state that "[o]ther than the fact that Marks and Dennehy are solicitors for the Borough, there is no evidence as to exactly what alleged conduct by Marks and/or Dennehy has deprived plaintiff of his right to property without due process of law." (Rec. Doc. No. 100, at 8.) The court is likewise unable to identify the alleged conduct of the Solicitor Defendants that Spradlin claims denied him of his rights. Spradlin argues that the Solicitor Defendants "participated in the adoption and enforcement of Borough Ordinances which have deprived Plaintiff of his basic fundamental rights." (Rec. Doc. No. 117, at 4.) Spradlin also states that the Solicitor Defendants "possessed first hand knowledge" that his rights "were being denied at their hands," that the solicitors "were active participants in the derpivation [sic] and could predict with accuracy when the deprivation would take place." (Id. at 6.) Viewing the record in the light most favorable to the plaintiff, there is nothing to support these ambiguous allegations.

  Even were plaintiff to directly identify conduct that allegedly deprived him of a federal right, he has not proven that the Solicitor Defendants were state actors for the purpose of Section 1983. The record indicates that the Solicitors for the Borough of Danville maintain a private practice with the Borough as one of the firm's clients. (Rec. Doc. No. 92, Ex. E, Dennehy Dep., at 5-7.) This role as solicitors for the Borough does not render them state actors per se. O'Hanlon v. City of Chester, No. CV 00-0664, 2002 WL 393122, at *4 (E.D. Pa. Mar. 12, 2002) (Hutton, J.). "Attorneys performing their traditional functions will not be considered state actors solely on the basis of their position as officers of the court." Angelico, 184 F.3d at 277 (citing Polk County v. Dodson, 454 U.S. 312, 318 (1981)). The Third Circuit has held that "[a] person may be found to be a state actor when (1) he is a state official, (2) he has acted together with or has obtained significant aid from state officials, or (3) his conduct is, by its nature, chargeable to the state." Angelico, 184 F.3d at 277 (quotations omitted).

  Spradlin has adduced no evidence that either Marks or Dennehy is a state official. Spradlin has likewise failed to identify conduct chargeable to the state allegedly engaged in by the solicitors. Rather, Spradlin argues that Marks and Dennehy conspired with Borough officials to deprive him of his property without due process. (Rec. Doc. No. 117, at 6.) Spradlin directs this court to no facts in the record, and after our own review we have found none, from which a reasonable jury could conclude that such a conspiracy existed. Spradlin simply states that "[i]t is a fact Defendant worked in concert with Borough Defendants (primarily Kiewlak) resulting in Plaintiff's rights being denied." (Id.)

  "Speculation and conclusory allegations do not satisfy [the] duty" to set forth specific facts showing that a genuine issue of material fact exists and that a reasonable factfinder could find in favor of the nonmoving party. Ridgewood Bd. Of Educ., 173 F.3d at 252. Spradlin attempts to rebut the Solicitor Defendants' motion for summary judgment with conclusory allegations of conspiracy, but fails to identify facts in the record to support such a claim. Spradlin has failed to present evidence indicating that the Solicitor Defendants are state actors for the purpose of 42 U.S.C. § 1983. Summary judgment will therefore be entered for the Solicitor Defendants on all of Spradlin's remaining Due Process, Fourth Amendment, and First Amendment claims.*fn2

  B. Due Process Claims (Counts VII, IX, and XI)

  Spradlin has alleged that he was deprived of his rights to substantive and procedural due process. The claims arise in three different counts. In Count VII, Spradlin claims that he was "denied a reasonable and meaningful opportunity to appeal" a Notice of Violation sent by the Codes and Zoning Enforcement Official on September 7, 2000, because "a time limit of (5) five days did not provide Plaintiff[] a meaningful appeal process." (Am. Compl., Rec. Doc. No. 19 at ¶ 133.) In Counts IX and XI, Spradlin claims that he was denied his right to due process because the Borough failed to establish a BOCA Code Appeals Board, and that failure denied Spradlin the opportunity to appeal a Stop Work Order issued on or about January 15, 2001 (id. at ¶¶ 167-69), and a Correction Notice issued on October 9, 2001 (id. at ¶¶ 188-191). We have construed Spradlin's amended complaint to allege that these procedural deficiencies denied his fundamental property interest in the use and development of his property. All defendants have moved for summary judgment on all counts.

  1. Procedural Due Process

  The Fourteenth Amendment of the United States Constitution forbids a state from depriving a person of life, liberty, or property without due process of law. U.S. Const. amend. XIV, § 1. In a case such as this, where a plaintiff has sued under 42 U.S.C. § 1983 alleging that state actors*fn3 failed to provide him due process, we employ a "familiar two-stage analysis." Alvin v. Suzuki, 227 F.3d 107, 116 (3d Cir. 2000) (quoting Robb v. City of Philadelphia, 733 F.2d 286, 292 (3d Cir. 1984)). We inquire (1) whether the asserted individual interests are encompassed within the Fourteenth Amendment's protection of "life, liberty, or property,"*fn4 and (2) whether the procedures available provided the plaintiff with "due process of law." Id.

  "In order to state a claim for failure to provide due process, a plaintiff must have taken advantage of the processes that are available to him or her, unless those processes are unavailable or patently inadequate." Id. "A state cannot be held to have violated due process requirements when it has made procedural protection available and the plaintiff has simply refused to avail himself of them." Id. (quoting Dusanek v. Hannon, 677 F.2d 538, 543 (7th Cir. 1982)). "A due process violation is not complete when the deprivation occurs; it is not complete unless and until the State fails to provide due process." Id. (quoting Zinermon v. Burch, 494 U.S. 113, 126 (1990)). "If there is a process on the books that appears to provide due process, the plaintiff cannot skip that process and use the federal courts as a means to get back what he wants." Id. (citing McDaniels v. Flick, 59 F.3d 446, 460 (3d Cir. 1995)).

  In Count VII, Spradlin claims that the five-day window provided by Section 139-55(B)(3) of the Borough of Danville Zoning Ordinance to appeal a zoning violation is unreasonable and fails to provide a meaningful opportunity to review.*fn5 This claim revolves around a Notice of Violation alleging a zoning violation at Spradlin's Water Street Property. Spradlin leased portions of the property to a dry cleaner and a salon in late 1999 or early 2000. Kiewlak issued a Notice of Violation on September 7, 2000, advising Spradlin that he needed to obtain a zoning permit for these uses, as the uses permitted by the existing zoning permit were limited to a gym and office space.*fn6 It is undisputed that the Notice of Violation advised Spradlin of his right to appeal, and contained a photocopy of Section 139-55(B)(3) of the Zoning Ordinance, which pertains to appeals. However, Spradlin did not appeal. Instead, he argues to this court that the appeal period is too short. The Third Circuit has determined that "[i]n Pennsylvania the procedure for challenging zoning ordinances substantially conforms with the general due process guidelines enunciated by the Supreme Court." Rogin v. Bensalem Twp., 616 F.2d 680, 695 (3d Cir. 1980); see also Siegmond v. Fedor, No. 3:CV-01-2266, 2004 WL 1490430, at *7 (M.D. Pa. June 29, 2004) (Vanaskie, C.J.); Omnipoint Commc'ns, Inc. v. Penn Forest Twp., 42 F. Supp. 2d 493, 507 (M.D. Pa. 1999) (Vanaskie, C.J.). As the Third Circuit has explained:
The Pennsylvania legislature has enacted a system for processing challenges to zoning ordinances. . . . A landowner who wishes to challenge the validity of a zoning ordinance or amendment that restricts the use or development of its land may file a challenge with the Zoning Hearing Board and may appeal from any decision by the Zoning Officer applying the ordinance. [Such an appeal] may be taken where . . . the landowner believes that the Zoning Officer misapplied an applicable rule of law. . . . If the landowner is dissatisfied with the Board's decision it then has the right to appeal to the Court of Common Pleas. The appeal may take the form of direct judicial review of the Board's decision, or the court may take new evidence and enter its own findings of fact after trial de novo. The Court is authorized to "declare any ordinance or map invalid and to set aside or modify" any action, decision, or order of the Township, Zoning Officer, or Zoning Hearing Board.
Rogin, 616 F.2d at 694-95 (citations omitted). The procedural mechanism afforded to Spradlin was this: (1) appeal Kiewlak's decision to the ZHB; (2) if dissatisfied with the decision of the ZHB, appeal to the Court of Common Pleas. Instead of pursuing the proper avenue of appeal, Spradlin sidesteps the constitutional procedure provided in Pennsylvania and instead complains in federal court that the five-day window in which to file a notice of appeal is unreasonable.

  The five-day window is not a period in which a prospective appellant must mount an entire defense to the charged zoning violation. Rather, "[a] property owner receiving a Notice of Violation in Danville Borough has five days from the date of receipt to mail or deliver a simple statement to the Borough Offices setting forth the section of the Notice in dispute, the reason for dispute, and a request for a hearing before the ZHB." (Rec. Doc. No. 91, at 10-11.) This does not appear to be a complicated matter requiring in-depth and time-consuming research.

  "[D]ue process, unlike some legal rules, is not a technical conception with a fixed content unrelated to time, place and circumstances. Due process is flexible and calls for such procedural protections as the particular situation demands." Mathews v. Eldredge, 424 U.S. 319, 334 (1976) (quotations and citations omitted). To determine the requirements of due process in any given situation, the Supreme Court has articulated a balancing test for the court to apply. Id. at 335; Rogin, 616 F.2d at 694. The "private interest affected by the governmental action and the value of additional procedural safeguards are to be ...


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