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Ciarlone v. City of Reading

November 18, 2009

MARY ANN CIARLONE, ET AL. PLAINTIFFS,
v.
CITY OF READING, ET AL. DEFENDANTS,



The opinion of the court was delivered by: Stengel, J.

MEMORANDUM

In this § 1983 civil rights case, plaintiffs allege defendants violated their constitutional rights when the defendants searched a property at 513 Oley Street, Reading Pennsylvania. Mary Ann Ciarlone owned the building. Irene Lora, Orazio Gerbino, and Anne Baez each rented apartments at the location from Ms. Ciarlone. Defendants failed to provide notice to the tenants prior to this administrative search, and used a sledge hammer in execution of a search warrant.

The defendants City of Reading, Reading Mayor Thomas McMahon, Reading Managing Director Ryan Hottenstine, Code Enforcement Administrator Brad Reinhart, former Manager of Building Trades and Zoning Jatinder Khokhar, and Code Enforcement Officer James Orr have filed a motion to dismiss the amended complaint (Document #12). For the reasons set forth below, I will deny the motion.

I. BACKGROUND

Ms. Ciarlone owns*fn1 a row house at 513 Oley Street which is divided into three units occupied by tenant-plaintiffs Ms. Lora, Mr. Gerbino and Ms. Baez. Ms. Ciarlone owns another rental unit (in which she lives) on North Fifth Street in the upscale Central Park area of north Reading. Ms. Ciarlone is active in several civic associations in the City, including the Real Estate Investors Association, the Central Park Historic District and the City of Reading Historic and Architectural Review Board. First Amended Complaint ¶ 45. She attends City Council meetings and hearings on a regular basis and sometimes expresses opinions critical of the City. Id. at ¶¶ 46-47. She has repeatedly spoken out against policies and personnel in the City's Office of Code Services.

On November 5, 2007, Ms. Ciarlone spoke at a City Council meeting in support of Wade and Tina Fuhrman, a couple who filed a lawsuit against the city alleging the Office of Code Services had unlawfully inspected their home. Id. at ¶ 50.

In December 2007, Ms. Ciarlone filed a complaint against defendant Jatinder Khokhar, Manager of Building Trades and Zoning, charging him with violating an ordinance that required him to be a city resident to hold his position. Id. at ¶¶ 52-55. Mr. Khokhar was suspended and fined by the Charter Review Board, but the Office of Code Services changed his title and allowed him to continue his position.

On March 12, 2007, the Office of Code Services mailed a Notice of Inspection to Ms. Ciarlone for the property at 709 North Fifth Street. Id. at ¶¶ 60-61. On April 2, 2007 - the day scheduled for the inspection - Ms. Ciarlone met Code Enforcement Officer Joseph Esterly outside the building and instructed him to get a search warrant for the property. Id. at ¶¶ 63, 66. Although he appeared before two magistrate judges, Officer Esterly was unable to obtain a warrant. Id. at ¶¶ 71-75. The 709 North Fifth Street property was never searched.

On September 24, 2008, the Office of Code Services informed Ms. Ciarlone that a property inspection was scheduled for the 511 Oley Street property*fn2 on October 7, 2008. The City did not provide notice of the inspection to any of the tenants who lived in that building. Id. at ¶ 78. When Code Enforcement Officer James Ott arrived on October 7, 2008, Ms. Ciarlone did not permit him access. Id. at ¶ 80.

On October 9, 2008, Officer Ott obtained a warrant to search the property. Id. at ¶ 89. The next day, Officer Ott and Mr. Reinhart, arrived at the property and found the exterior door locked. Id. at ¶92. When Ms. Ciarlone refused to participate in the search, Mr. Reinhart struck the front door with a sledgehammer seven times to break it open, but had no success. Id. at ¶¶ 92-93. He then broke the glass out of the door and unlocked the door from the inside. Id. at ¶ 94. Mr. Reinhart knocked on each of the three interior doors to the tenants' apartments. Id. at ¶ 96. When no one answered, Mr. Reinhart used his sledgehammer to break down each apartment door. Id. at ¶ 97. The occupants of those apartments were not home. Id. at ¶ 98. After the inspection, the officials left without leaving notice to the tenants that they had searched their apartments.*fn3 Id. at ¶ 101. They did, however, issue a "Notice of Violation" to Ms. Ciarlone requiring her to repair the doors and windows they had broken. Id. at ¶100.

On October 11, 2008, the day after the doors of Ms. Ciarlone's property were broken down, City Councilman Stephen Fuhs came to view the damage and to apologize for the extensive destruction and for the Office of Code Services' actions. Id. at ¶¶ 134-135. Six days later, Reading City Council passed a resolution directing the Codes Department not to undertake forced entry into private properties. Id. at 136.

II. DISCUSSION

A motion to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure examines the legal sufficiency of the complaint. Conley v. Gibson, 355 U.S. 41, 45-46 (1957). The factual allegations must be sufficient to make the claim for relief more than just speculative. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). In determining whether to grant a motion to dismiss, a federal court must construe the complaint liberally, accept all factual allegations in the complaint as true, and draw all reasonable inferences in favor of the plaintiff. Id.; see also D.P. Enters. v. Bucks County Cmty. Coll., 725 F.2d 943, 944 (3d Cir. 1984).

The Federal Rules of Civil Procedure do not require a plaintiff to plead in detail all of the facts upon which he bases his claim. Conley, 355 U.S. at 47. Rather, the Rules require a "short and plain statement" of the claim that will give the defendant fair notice of the plaintiff's claim and the grounds upon which it rests. Id. The "complaint must allege facts suggestive of [the proscribed] conduct." Twombly, 550 U.S. at 564. Neither "bald assertions" nor "vague and conclusory allegations" are accepted as true. See Morse v. Lower Merion School Dist., 132 F.3d 902, 906 (3d Cir. 1997); Sterling v. Southeastern Pennsylvania Transp. Auth., 897 F. Supp. 893 (E.D. Pa. 1995). The claim must contain enough factual matters to suggest the required elements of the claim or to "raise a reasonable expectation that discovery will reveal evidence of" those elements. Phillips v. County of Allegheny, 515 F.3d 224, 234 (3d Cir. 2008) (quoting Twombly, 550 U.S. at 556).

A. Counts I and III -- Constitutionality of the Search

Count I of plaintiff's complaint concerns the October 10, 2008 inspection and search of 510 Oley Street, and claims the failure of the defendants to obtain the consent of the tenant plaintiffs and the use of the sledge hammer violated the Fourth Amendment.*fn4

First Amended Complaint at ΒΆΒΆ 137-167. Count III alleges a violation of the tenant plaintiff's right to privacy because they were not provided with notice of the inspection, did not authorize Ms. Ciarlone to grant access to their homes, were denied the opportunity to allow entry to their homes, and were denied the opportunity to ...


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