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Faylor v. Szupper

September 14, 2009

CHERYL FAYLOR, PLAINTIFF,
v.
MICHAEL SZUPPER, INDIVIDUALLY AND AS RELOCATION SPECIALIST UNITED STATES DEPT. OF HOUSING AND URBAN DEVELOPMENT (HUD); JOHN TOLBERT, INDIVIDUALLY AND AS FIELD OFFICE DIRECTOR, HUD; WESTMORELAND COUNTY, PA., HOMES BUILD HOPE, A SERVICE OF ADELPHOI, USA; WEM HOUSING, L.P., CHAD RUFFNER, INDIVIDUALLY AND AS EXECUTIVE DIRECTOR WEM HOUSING L.P. AND IN OFFICIAL CAPACITY AT HOMES BUILD HOPE; PROFESSIONAL COMMUNITY COORDINATORS, INC., AND CARLOTTA PAIGE, INDIVIDUALLY AND IN HER OFFICIAL CAPACITY AT PROFESSIONAL COMMUNITY COORDINATORS, INC., DEFENDANTS.



The opinion of the court was delivered by: Mitchell, Magistrate Judge

MEMORANDUM OPINION AND ORDER

Presently before the Court is a motion to dismiss the amended complaint or for summary judgment submitted by defendants Professional Community Coordinators, Inc. ("PCC") and Carlotta Paige (Document No. 82), and a motion to dismiss the amended complaint filed by defendants Homes Build Hope, Inc. ("HBH"), WEM Housing, L.P., and Chad Ruffner (Document No. 106). For reasons discussed below, the motions filed by PCC and Ms. Paige, and by HBH, WEM Housing and Mr. Ruffner, treated as motions for judgment on the pleadings, will be granted as to all claims except for the procedural due process claim in Count II and the negligence claim against them in Count IV.

Also before the Court are the plaintiff's motions for summary judgment (Document No. 102) and for reconsideration of the Court's Memorandum Opinion and Order dated April 15, 2009 (w/ Document No. 102). As discussed more fully below, the plaintiff's motions for summary judgment and for reconsideration will be denied.

The plaintiff, Cheryl Faylor, proceeding pro se, has filed an amended civil rights complaint pursuant to the Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970 ("URA"), 42 U.S.C. §§ 4601, et seq.*fn1 The plaintiff contends that the defendants failed to comply with the URA during her relocation to other housing which violated her Fourteenth Amendment rights to equal protection (Count I) and due process (Count II) under 42 U.S.C. § 1983. She also complains that the defendants engaged in a conspiracy to violate her rights under 42 U.S.C. § 1985(3) (Count V) and are liable for breach of contract/unjust enrichment (Count III) and negligence (Count IV). The Court's federal question and supplemental jurisdiction are invoked.

Named as defendants in the amended complaint are Michael Szupper, individually and as Relocation Specialist for the U.S. Department of Housing and Urban Development ("HUD"), John Tolbert, individually and as Field Office Director of HUD (collectively, the "Federal defendants"), Westmoreland County, PA, and its Commissioners Thomas Bayla and Thomas Ceraso, individually and in their official capacities as County Commissioners for Westmoreland County, PA (collectively, the "County defendants"), PCC, Carlotta Paige, individually and in her official capacity at PCC, HBH, WEM Housing, and Chad Ruffner, individually and as Executive Director of WEM Housing and in his official capacity at HBH.

In response to the amended complaint, the County defendants moved to dismiss it, and the Federal defendants filed a motion to dismiss or for summary judgment.*fn2 On April 15, 2009, the Court issued a Memorandum Opinion and Order, granting the County defendants' motion to dismiss all claims except for the plaintiff's procedural due process claim in Count II against Westmoreland County; the Court treated the Federal defendants' motion as a motion to dismiss and granted it on all claims except for the procedural due process claim against them in their individual capacities. On June 30, 2009, the Court issued a Supplemental Memorandum Opinion and Order, granting the Federal defendants' motion for reconsideration and dismissing all claims against them.

In ruling on the motions before us, we rely on and recite portions from the Court's Memorandum Opinion and Order dated April 15, 2009, which set forth facts underlying the plaintiff's claims. The plaintiff alleges that she was a resident at 411 South 6th Street in Jeannette, PA for over five years; that she lived in a townhouse unit that was one of several units targeted for demolition to make way for a renovation project called the Jeannette 6th Street Project (the "Project"); and that the Project utilized federal funding through HUD's HOME Investment Partnership Program.

In 2006 and 2007, HUD and Westmoreland County (the "County") entered into Agreements pursuant to the HOME Investment Partnerships Act, 42 U.S.C. § 12701, et seq., whereby HUD agreed to make funds available in exchange for the County's agreement to develop affordable housing. The County disbursed HUD funds for the Project to HBH, which created WEM Housing to act as the general contractor on the Project. As general contractor, WEM Housing purchased the townhouse units on South 6th Street and hired PCC and Carlotta Paige to assist in relocating residents affected by the Project.

The plaintiff contends that on or about February 21, 2007, WEM Housing signed a purchase agreement with the owner of the building where she resided which was the "initiation of negotiations", at which time the agency was to notify her in writing of her eligibility for relocation assistance, but it failed to do so. In a letter dated March 2, 2007, HBH informed the plaintiff that her family may be displaced by the Project, and it provided her with information as to her potential rights as a displaced person under the URA.

On or about April 2, 2007, employees from PCC met with the plaintiff to obtain information from her which would be used to complete her relocation assistance. However, the plaintiff avers that she received no further information or contact from HBH or PCC until August 2007, by which time her townhouse unit and other units in the building had fallen into disrepair. For instance, the plaintiff asserts that rotting trash and discarded mattresses accumulated in front of the building, grass and weeds grew taller than four feet high, abandoned units were not cleaned, and cockroaches, fleas and other vermin were present on the premises.

The plaintiff contends that on September 12, 2007, she saw Carlotta Paige and complained about her living conditions and inquired about relocation efforts, and Paige told her they were working on it; that on or about September 21, 2007, she received a letter from Chad Ruffner, informing her that she was eligible for relocation assistance and needed to relocate to a different residence upon 90 days notice, but the letter did not advise her how much rental assistance she would receive; and that on September 24, 2007, she wrote to Ruffner complaining about the vermin problem, after which HBH fumigated the vacant, uncleaned unit next to hers, and Ruffner inspected her premises and said he would talk to Carlotta Paige about it.

The plaintiff asserts that in October 2007, she witnessed two house fires within a four-day period just a block from her residence, and fearing increased vandalism from abandoned housing in the area, she informed HBH and HUD that she intended to move from her residence. In a letter dated October 12, 2007, HBH provided notice to the plaintiff that she had to vacate her unit within 90 days; this letter also informed the plaintiff that she was eligible for $1,450.00 for a moving allowance and $17,262.00 for rental assistance pursuant to the URA.

On October 22, 2007, the plaintiff moved from her residence and signed a lease for a replacement dwelling. She received an advance for her security deposit and the first month of rent in the new dwelling. On November 29, 2007, PCC paid the rental assistance funds.

In a letter dated December 2, 2007, the plaintiff informed HBH and HUD of her intent to appeal her relocation assistance determination, as she believed she was entitled to $17,000 in additional funds. By letter dated February 1, 2008, Chad Ruffner informed the plaintiff that he needed additional information to assess her appeal. In a letter dated March 13, 2008, John Tolbert of HUD advised the plaintiff that after reviewing her appeal, it was determined that she and her family qualified for an additional $9,461.20 in rental assistance.

The plaintiff wrote a letter to John Tolbert dated March 17, 2008, expressing her dissatisfaction with the recalculated amount of her rental assistance. Copies of this letter were sent to Michael Szupper of HUD and the County Commissioners. On March 31, 2008, the plaintiff received payment in connection with her appeal in the amount of $9,961.20, a sum which she believes is less than what she is entitled to under the URA.

The URA is designed to minimize the hardship of displacement on persons like the plaintiff who are displaced as a direct result of programs or projects undertaken by a federal agency or with federal financial assistance. 42 U.S.C. § 4621(b). To that end, the URA provides relocation services and assistance to displaced persons. See, 42 U.S.C. § 4625 and 49 C.F.R. Part 24.*fn3 The parties agree that the plaintiff was eligible to receive several types of URA relocation services, including: relocation advisory services pursuant to 49 C.F.R. § 24.205; relocation notices pursuant to 49 C.F.R. § 24.203; reimbursement for moving expenses pursuant to 49 C.F.R. §§ 24.301 and 24.302; and payments for the added cost of replacement housing or rental assistance pursuant to 49 C.F.R. §§ 24.401-24.403.

The plaintiff contends that the defendants failed to comply with the URA in several respects -- such as by failing to provide certain relocation services to her, not properly calculating her relocation rental assistance or making timely payment, and not promptly or properly determining her appeal -- all of which deprived her of her Fourteenth Amendment rights to equal protection (Count I) and due process (Count II) under 42 U.S.C. § 1983. As discussed above, the plaintiff also complains that the defendants engaged in a conspiracy to violate her civil rights under 42 U.S.C. § 1985(3) (Count V) and are liable for breach of contract/unjust enrichment (Count III) and negligence (Count IV).

PCC and Carlotta Paige's motion to dismiss or for summary judgment, and HBH, WEM Housing and Chad Ruffner's motion to dismiss:

In response to the amended complaint, PCC and Carlotta Paige first filed an answer, denying liability (Document No. 72). PCC and Paige then moved to dismiss the amended complaint or for summary judgment (Document No. 82). Similarly, HBH, WEM Housing and Chad Ruffner first responded to the amended complaint by filing an answer (Document No. 73). They then moved to dismiss the amended complaint pursuant to Fed.R.Civ. P. 12(b)(6) (Document No. 106). Since these defendants filed answers prior to filing their current motions, we will treat their motions as ones for judgment on the pleadings under F.R.Civ.P. 12(c). Mele v. Federal Reserve Bank of NY, 359 F.3d 251, 253 n.1 (3d Cir. 2004).

A motion for judgment on the pleadings is subject to the same standard as a Rule 12(b)(6) motion to dismiss. Mele, supra, 359 F.3d at 253. Thus, we will view all facts presented in the pleadings in a light most favorable to the non-movant. Id. A motion for judgment on the pleadings will not be granted "unless the moving party has established that there is no material issue of fact to resolve, and that [they are] entitled to judgment as a matter of law." Id.

The Third Circuit Court of Appeals has held that a private cause of action exists against state officials for violations of § 4625 of the URA due to the absence of a comprehensive enforcement scheme under the Act. Pietroniro v. Borough of Oceanport, 764 F.2d 976, 980 (3d Cir. 1985), cert. denied, 474 U.S. 1020 (1985). Also see, Munoz v. City of Philadelphia, 2007 WL 2973837, *7-*8 (E.D.Pa., Oct. 10, 2007) ("a private cause of action exists under § 1983 for violations of § 4625(a) of the URA"), citing Pietroniro. The defendants do not argue otherwise.

Rather, in support of their pending motions, the defendants assert that the § 1983 claims against them fail, because they did not act under color of state law. In the alternative, they argue that the plaintiff has not pled a viable § 1983 claim or conspiracy against them.

The United States Supreme Court has stated: "When Congress enacted § 1983 as the statutory remedy for violations of the Constitution, it specified that the conduct at issue must have occurred under color of state law; thus liability attaches only to those wrongdoers who carry a badge of authority of a State and represent it in some capacity." National Collegiate Athletic Ass'n. v. Tarkanian, 488 U.S. 179, 191 (1988).*fn4 Thus, to state a viable § 1983 civil rights claim, the plaintiff must plead that the defendants, acting under color of state law, deprived her of a right secured by the Constitution or laws of the United States. Kacher v. County of Bucks, 455 F.3d 418, 423 (3d Cir. 2006).

The plaintiff alleges that PCC "is a business" located in Jeannette, PA, for which Carlotta Paige works*fn5, and that HBH and WEM Housing are "business entit[ies]", for which Chad Ruffner works.*fn6 To determine if such private actors are subject to scrutiny under §1983, we must assess whether their alleged conduct can be "fairly attributable to the state." Lugar v. Edmondson Oil Co., 457 U.S. 922, 937 (1982). While there is no single or uniform test to determine if a private act may be attributable to the state, the Supreme Court has developed several frameworks for assessing this question, which it summarized as follows:

[A] challenged activity may be state action when it results from the State's exercise of 'coercive power', Blum [v. Yaretsky, 457 U.S. 991, 1004 (1982)], when the State provides 'significant encouragement, either overt or covert, ibid, or when a private actor operates as a 'willful participant in joint activity with the State or its agents,' Lugar [supra, 457 U.S. at 941]. We have treated a nominally private entity as a state actor when it is controlled by an 'agency of the State', Pennsylvania v. Board of Directors of City Trusts of Philadelphia, 353 U.S. 230, 231 (1957) (per curiam), when it has been delegated a public function by the State, cf., e.g., West v. Atkins, [487 U.S. 42, 56 (1988)]; Edmonson v. Leesville Concrete Co., 500 ...


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