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Panchura v. Ryan

March 28, 2006


The opinion of the court was delivered by: Ambrose, Chief District Judge.


In this civil action, Plaintiffs allege that construction activities on property adjacent to their home caused them to suffer various damages. Plaintiffs assert, inter alia, that the Borough of Whitehall violated 42 U.S.C. § 1983, in depriving them of their rights to equal protection by selectively enforcing local ordinances. In addition, Plaintiffs seek relief in the form of mandamus under the Storm Water Management Act, 32 P.S. § 680.1. et seq., as well as monetary relief pursuant to several state common law claims.

Defendants have moved to dismiss the Complaint pursuant to Fed. R. Civ. P. 12(b)(1) and (6), arguing that this Court lacks subject matter jurisdiction because Plaintiff's Section 1983 claim is insufficiently pleaded. For the following reasons, Defendants' Motions will be granted, and Plaintiffs' Complaint dismissed without prejudice. Plaintiffs will be provided an opportunity to amend their Complaint.



In deciding a motion to dismiss, all factual allegations, and all reasonable inferences therefrom, must be accepted as true and viewed in a light most favorable to the plaintiff. Colburn v. Upper Darby Twp., 838 F. 2d 66, 666 (3d Cir. 1988). I will dismiss a complaint only if it appears beyond a reasonable doubt that the plaintiff can prove no set of facts in support of her claim which would entitle her to relief. Conley v. Gibson, 355 U.S. 41, 45, 78 S.Ct. 99, 2 L.Ed. 2d 80 (1957). Complaints "need not plead law or match facts to every element of a legal theory." Weston v. Pennsylvania, 251 F. 3d 420, 429 (3d Cir. 2001). Nevertheless, I need not accept bald assertions and legal conclusions. Chemtech Int'l v. Chemical Injections, Inc., No. 05-2296, 2006 U.S. App. LEXIS 6865, at *7 (3d Cir. Mar. 8, 2006).

When a motion is made under Rule 12(b)(1), the plaintiff bears the burden of demonstrating that subject matter jurisdiction exists; under Rule 12(b)(6), the movant bears the burden of showing that no claim has been stated. Kehr v. Fidelcor, Inc., 926 F.2d 1406, 1409 (3d Cir. 1991).


Section 1983 is a procedural vehicle by which individuals subjected to a deprivation of rights arising under the Constitution and laws of the United States may secure redress. Gonzaga Univ. v. Doe, 536 U.S. 273, 284-85, 153 L.Ed. 2d 309, 122 S.Ct. 2268 (2002). In a Section 1983 action, therefore, the court must determine "whether the plaintiff has even alleged the deprivation of a right that either the federal law or the Constitution protects." Gruenke v. Seip, 225 F.3d 290, 298 (3d Cir. 2000).

Certainly, selective enforcement of laws or regulations may give rise to a violation of the Fourteenth Amendment. Bradley v. United States, 299 F.3d 197, 206-07 (3d Cir. 2002). Here, Plaintiffs' allegations of selective enforcement are insufficient. The Complaint, for example, is devoid of allegations that the government would have enforced the subject code at the request of, or in light of harm to, another resident similarly situated to Plaintiffs. See, e.g., Gagliardi v. Pawling, 18 F. 3d 188, 193 (2d Cir. 1994); Mandingo Tshaka v. Bnepe, 2003 U.S. Dist. LEXIS 8229, **8-9 (E.D.N.Y. Apr. 9, 2003). Moreover, I need not, and will not, credit Plaintiff's bald allegations of selective treatment.

Moreover, the inequality that Plaintiffs describe is not of a type prohibited by the Fourteenth Amendment. The federal Constitution "limits the powers of government but does not give people legally enforceable rights to demand public services and to obtain damages or other legal relief if the government fails to provide them." Tuffendsam v. Dearborn County Bd. of Health, 385 F.3d 1124, 1126 (7th Cir. 2004). It is well established, therefore, that there is no constitutional right to have alleged wrongdoers prosecuted, or laws enforced, whether civilly or criminally. Heckler v. Chaney, 470 U.S. 821, 831, 84 L.Ed. 2d 714, 105 S.Ct. 1649 (1985); Baskette v. Commonwealth Atty., No. 05-CV-8, 2005 U.S. Dist. LEXIS 13388, at **7-8 (W.D. Va. July 5, 2005). This pertains even if the plaintiffs are victims of the alleged wrongdoer. Baskette, 2005 U.S. Dist. LEXIS 13388, at *8.

The present Plaintiffs, therefore, do not allege a cognizable constitutional deprivation. They have no fundamental right to demand enforcement of the law against their neighbors; similarly, they do not aver that they were singled out for the enforcement of any law, much less in such a way to burden their alleged "fundamental right to property." The Complaint is devoid of allegations that the Government directed any intentional treatment, improper or otherwise, toward Plaintiffs. Plaintiffs' Complaint alleges that the Borough's failure to enforce the laws against the individual Defendants resulted from undue influence exerted by those individuals or their contractors, rather than any characteristic of Plaintiffs or their property. Plaintiffs' attempt to describe how they were treated differently focuses exclusively on the Borough's alleged treatment of the individual Defendants.*fn1 By Plaintiffs' own description, their claim centers on a showing "that the Defendant Borough has intentionally treated the Ryans' property different from others similarly situated." Under the facts as pleaded, therefore, Plaintiffs cannot sustain a claim under Section 1983.

As a final matter, I address Plaintiffs' argument that they may sustain a "class of one" claim under Village of Willowbrook v. Olech, 528 U.S. 562, 145 L.Ed. 2d 1060, 120 S.Ct. 1073 (2000) (per curiam). Such a claim may be brought by a person alleging that she has been "intentionally treated differently from others similarly situated and that there is no rational basis for the difference in treatment." Id. at 564. Again, the crux of Plaintiffs' Complaint is not that they were intentionally treated differently from others similarly situated, and they have alleged no such facts; instead, the persons allegedly subject to special treatment were the individual Defendants. In addition, the reasoning employed in Tuffendsam v. ...

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