The opinion of the court was delivered by: Judge Conner
Pro se plaintiff Sandra L. Good ("Good") brings this civil rights action pursuant to 42 U.S.C. § 1983 against the following defendants: (1) the Borough of Steelton, (2) John Trish, (3) Sylvia Stoner, and (4) Dennis C. Heefner. Good seeks to hold defendants liable for violating her Fourteenth Amendment rights to substantive and procedural due process and equal protection, and engaging in behavior that constituted a violation of her Fourth Amendment rights to be free from unreasonable searches and seizures. Presently before the court are two motions: (1) defendants' motion to dismiss plaintiff's second amended complaint (Doc. 36) pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, and (2) a motion for leave to supplement the second amended complaint, filed by Good.*fn1 For the reasons that follow, the motion to dismiss will be granted, and Good's request for leave to supplement her complaint will be granted in part and denied in part. Good will be granted leave to file a third amended complaint.
I. Statement of Facts*fn2
Good owns a residence located within the Borough of Steelton. (Doc. 35 ¶ 1.)
The dispute in this case centers around the efforts of the Steelton Borough Code Enforcement Office to bring Good's property into compliance with local ordinances. Such efforts began on July 11, 2006, when defendant John Trish ("Trish"), a property maintenance officer for Steelton Borough, sent Good a letter informing her that her sidewalk was in "disrepair" and violated "the provisions of the 2003 International Property Maintenance Code and/or Borough of Steelton's Codified Ordinances." (Doc. 35, Ex. A.) The letter advised that Good must repair her sidewalk by August 12, 2006 or face a citation. (Id.) The letter further informed Good of her right to request a hearing regarding the alleged violation by filing a written petition within ten days of the letter's receipt.*fn3 (Id.) Prior to the expiration of this ten day period, Good contacted Trish's office in order to inquire about the standards governing sidewalk maintenance. (Doc. 35 ¶ 4a.) Good was unable to reach Trish, but instead spoke to defendant Sylvia Stoner ("Stoner"), who informed Good that Trish was ill and would return her phone call within the ten day appeals period. (Id.) When Good did not hear from Trish for several days, she called Trish's office a second time, at which point Stoner again instructed Good to await Trish's return call. (Id. ¶ 4b.) The ten day appeals period lapsed prior to Trish's return call.
In early August, Trish contacted Good. He advised Good that her brick sidewalk would have to be replaced with concrete to comply with the ordinance. (Id. ¶ 5; Doc. 6, Ex. B.) In light of the scope of this project, Trish granted Good an extension of time until September 12, 2006, in which to complete the work. (Doc. 6, Ex. B.) Good then commenced to replace her sidewalk. (Doc. 35 ¶ 13.)
While Good's sidewalk project was in progress, defendant Dennis C. Heefner ("Heefner"), a member of the Steelton Borough Council, contacted Good by telephone and suggested that she place caution tape around the work site. (Id. ¶ 14.) Good immediately complied. (Id.) On August 31, 2006, with the work on her sidewalk only partially complete, Stoner contacted Good by telephone and advised her to remove the caution tape because it was creating a safety hazard for schoolchildren who were forced to walk in the street to pass her home. (Id. ¶ 15.) Good gradually became aware that no other sidewalk replacement projects were being conducted on properties in Steelton Borough.*fn4 (Id. ¶ 16.) She alleges that at least nine properties in her immediate neighborhood, and perhaps 100 more in the entire borough, have brick sidewalks that are in a state of "disrepair." (Doc. 6 ¶ 8.) None of these property owners were directed to comply with a September deadline for sidewalk replacement.*fn5 (Id.)
At some point, Good abandoned work on the sidewalk project. Good now alleges that she is "burdened with the need to replace her sidewalk and maintain a safe working site, and move storage bricks out of her side yard." (Doc 35 ¶ 19.) Additionally, Good complains that she was forced to "unnecessarily pa[y] labor to . . . remove bricks." (Id.) Good asks the court to order defendants to clean up the work site, repair her sidewalk at their own expense, and pay $50,000 in punitive damages. (Id. at 15.)
On September 5, 2006, Good initiated the instant action, alleging that defendants violated her Fourteenth Amendment rights by: (1) depriving her of property without due process, and (2) holding her to different standards of "adherence to statutes and ordinances" than her neighbors. (Doc. 1; Doc. 6.) Defendants filed motions to dismiss on November 20, 2006, alleging that Good's complaint failed to state cognizable Fourteenth Amendment claims against them. (Docs. 12, 14.) On September 13, 2007, this court denied defendants' motion with respect to Good's equal protection claim against John Trish in his individual capacity. (Doc. 30.) This court granted defendants' motions, however, with respect to all other claims, but afforded Good leave to amend. (Id.)
Good filed a second amended complaint on November 26, 2007, alleging that the Borough's appeals policy unconstitutionally denied her due process and equal protection of the laws.*fn6 (Doc. 35.) On December 10, 2007, defendants filed a motion to dismiss Good's second amended complaint, alleging that Good's Fourteenth Amendment claims were not cognizable. (Doc. 36.) The motion has been fully briefed and is ripe for disposition.
While the parties were awaiting the court's ruling on the instant motion to dismiss, Good sought leave to amend her complaint a third time, supplementing her Fourteenth Amendment claims with alleged Fourth Amendment violations that occurred after Good initiated this lawsuit. (Doc. 53.) Two separate incidents form the basis of Good's proposed supplemental cause of action. On February 14, 2008, Trish took multiple photographs of Good's residence. (Id. ¶ 1.) As he was doing so, he saw Good's daughter and three grandchildren and allegedly began chasing them. (Id.) Good claims that during the pursuit, Trish took several photographs of the children and, despite a written request that the photographs be returned, Good maintains that they allegedly remain in Trish's possession. (Id.)
Two months later, on April 15, 2008, Stoner and four other individuals purportedly entered an efficiency apartment located at 187 South Front Street, in Steelton. (Id. ¶ 2.) At the time of the entry, Good was leasing the efficiency. (Id.) Good was not present when this incident occurred and claims that Stoner's entry of the apartment was unannounced and without a warrant. (Id.) Subsequently, Good discovered that "highly personal items on her bedtable had been ransacked" and that several "personal legal papers" were missing. (Id. ¶ 3.)
On April 16, 2008, Good requested leave to supplement her complaint in light of the alleged Fourth Amendment violations. (Doc. 52.) On May 19, 2008, defendants opposed the motion, arguing that Good's additional allegations were without merit, futile, and dilatory. (Doc. 56.) The request for leave to supplement has been fully briefed and is ripe for disposition. Consequently, the court will address both defendant's motion to dismiss plaintiff's second amended complaint, as well as plaintiff's motion for leave to supplement and file a third amended complaint.
Rule 12(b)(6) of the Federal Rules of Civil Procedure provides for the dismissal of complaints that fail to state a claim upon which relief can be granted. FED. R. CIV. P. 12(b)(6). When ruling on a motion to dismiss under Rule 12(b)(6), the court must "accept as true all [factual] allegations in the complaint and all reasonable inferences that can be drawn therefrom, and view them in the light most favorable to the plaintiff." Kanter v. Barella, 489 F.3d 170, 177 (3d Cir. 2007) (quoting Evancho v. Fisher, 423 F.3d 347, 350 (3d Cir. 2005)). Although the court is generally limited in its review to the facts in the complaint, it "may also consider matters of public record, orders, exhibits attached to the complaint and items appearing in the record of the case." Oshiver v. Levin, Fishbein, Sedran & Berman, 38 F.3d 1380, 1384 n.2 (3d Cir. 1994); see also In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1426 (3d Cir. 1997).
Federal notice and pleading rules require the complaint to "give the defendant notice of what the . . . claim is and the grounds upon which it rests." Sershen v. Cholish, No. 3:07-CV-1011, 2007 WL 3146357, at *4 (M.D. Pa. Oct. 26, 2007) (quoting Erickson v. Pardus, --- U.S. ---, 127 S.Ct. 2197, 2200 (2007)). The plaintiff must present facts that, if true, demonstrate a plausible right to relief. See FED. R. CIV. P. 8(a) (stating that the complaint should include "a short and plain statement of the claim showing that the pleader is entitled to relief"); Bell Atl. Corp. v. Twombly, --- U.S. ---, 127 S.Ct. 1955, 1965 (2007) (requiring plaintiffs to allege facts sufficient to "raise a right to relief above the speculative level"); Victaulic Co. v. Tieman, 499 F.3d 227, 234 (3d Cir. 2007). Thus, courts should not dismiss a complaint for failure to state a claim if it "contain[s] either direct or inferential allegations respecting all the material elements necessary to sustain recovery under some viable legal theory." Montville Twp. v. Woodmont Builders, LLC, 244 F. App'x 514, 517 (3d Cir. 2007) (quoting Twombly, --- U.S. at ---, 127 S.Ct. at 1969). Under this liberal pleading standard, courts should generally grant plaintiffs leave to amend their claims before dismissing a complaint that is merely deficient. See Grayson v. Mayview State Hosp., 293 F.3d 103, 108 (3d Cir. 2002); Shane v. Fauver, 213 F.3d 113, 116-17 (3d Cir. 2000).
Section 1983 of Title 42 of the United States Code offers private citizens a means to redress violations of federal law committed by state officials. See 42 U.S.C. § 1983. The statute provides, in pertinent part, as follows:
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress . . . .
Id. Section 1983 is not a source of substantive rights, but merely a method for vindicating violations of other federal laws. Gonzaga Univ. v. Doe, 536 U.S. 273, 284-85 (2002); Kneipp v. Tedder, 95 F.3d 1199, 1204 (3d Cir. 1996). To establish a claim under this section, the plaintiff must show a deprivation of a "right secured by the Constitution and the laws of the United States . . . by a person acting under color of state law." Kneipp, 95 F.3d at 1204 (quoting Mark v. Borough of Hatboro, 51 F.3d 1137, 1141 (3d Cir. 1995)).
In the action sub judice, Good alleges that defendants violated her Fourteenth Amendment rights to due process and equal protection. The court will address the due process claims after first discussing the antecedent requirement of personal involvement.
For a § 1983 claim to survive a motion to dismiss, a plaintiff must allege "that each and every defendant was personally involved in depriving him of his rights." Kirk v. Roan, No. 1:04-CV-1990, 2006 WL 2645154, at *3 (M.D. Pa. Sept. 14, 2006); see also Evancho, 423 F.3d at 353 ("A[n individual government] defendant in a civil rights action must have personal involvement in the alleged wrongdoing."). A defendant's personal involvement in a constitutional violation may be established via allegations of "personal direction," "actual knowledge and acquiescence," or "direct discrimination." Evancho, 423 F.3d at 353; see also Andrews v. City of Phila., 895 F.2d 1469, 1478 (3d Cir. 1990). This court described the specificity required of a plaintiff's allegations as follows:
[A]llegations are sufficient to survive a motion to dismiss when they name the individuals responsible, the conduct, the time, and the place of the incident that deprived a plaintiff of his civil rights. Conversely, alleging a mere hypothesis that an individual defendant had personal knowledge or involvement in depriving the plaintiff of his rights is insufficient. Accordingly, a § 1983 complaint must be dismissed when it fails to contain even a remote suggestion that a supervisory defendant had contemporaneous, personal knowledge of the alleged harm and acquiesced in it.
Kirk, 2006 WL 2645154, at *3 (quoting Evancho, 423 F.3d at 353 and Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1988)) (internal citations omitted).
In the instant case, Good's constitutional claims are limited to the Borough's efforts to bring her sidewalk into compliance with local ordinances.*fn7 As such, Good fails to allege that either Heefner or Stoner was personally involved in the alleged constitutional deprivation. According to Good's second amended complaint, Heefner did not become involved in the underlying events until some point in time after Good had commenced reconstruction efforts on her sidewalk. In fact, she admits as much, stating that the bricks in her sidewalk had already been removed by the time Heefner first contacted her. (Doc. 41 at 6.) Thus, Good fails to allege that Heefner had "contemporaneous, personal knowledge" of the Borough's decision to enforce its sidewalk ordinance against her or that he played any active role in that decision. See Kirk, 2006 WL 2645154, at *3 (requiring that the accused government actor be actively involved in the constitutional deprivation, as opposed to a passive supervisor who simply failed to prevent the injury in the first place). Rather, Heefner's alleged involvement is limited to directing Good to place caution tape around her sidewalk and advising Good to seek an extension of time with which to complete the sidewalk reconstruction. Such instructions hardly rise to the level of a constitutional violation.
Similarly, Good's individual capacity claims directed at Stoner also fail for lack of personal involvement. According to her complaint, Stoner's role in this matter was akin to that of a desk clerk answering the office phone in the Code Enforcement Office. By Good's own admission, Stoner took Good's messages and promised to relay them to an authority figure; Good makes no allegation that Stoner failed to relay those messages. Furthermore, although Stoner did not provide Good with information regarding the code appeals process, Good does not allege that Stoner had such information or the authority to provide it. As such, the complaint fails to allege that Stoner was a supervisory defendant with contemporaneous, personal involvement in the decision to enforce the sidewalk ordinance against Good.
For the foregoing reasons, the court will dismiss Good's § 1983 claims against defendants Heefner and Stoner. However, the court will grant Good leave to amend her complaint in order to allege sufficient facts to suggest that the defendants were personally involved in the purported constitutional violations.
2. Due Process Claims against the Borough of Steelton
A local government entity may be held liable under § 1983 only if the plaintiff can identify an official policy or custom that caused his or her injury. Bd. of County Comm'rs v. Brown, 520 U.S. 397, 403 (1997) (citing Monell v. Dep't of Soc. Servs., 436 U.S. 658, 694 (1978)). A policy is an official proclamation or edict of a local government entity that results "from the decisions of its duly constituted legislative body or of those officials whose acts may fairly be said to be those of the municipality." Id. at 403-04; see also Beck v. City of Pittsburgh, 89 F.3d 966, 971 (3d Cir. 1996) (quoting Andrews, 895 F.2d at 1480) (citations omitted). A custom may provide the basis for § 1983 liability when the practice is "so permanent and well settled as to virtually constitute law." Beck, 89 F.3d at 971 (quoting Andrews, 895 F.2d at 1480) (citations omitted).
In the instant case, Good advances both facial and as applied challenges to the constitutionality of § 2-15 of the Borough code.*fn8 (Doc. 35 ¶¶ 20-23.); see also BOROUGH OF STEELTON, PA., CODE § 2-15 (describing the Borough appeals procedure). Clearly, the relevant section of the Borough code constitutes a local policy for § 1983 purposes. As ...