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Lease v. Fishel

March 31, 2010

DAVID R. LEASE, PLAINTIFF
v.
DOUGLAS FISHEL ET AL., DEFENDANTS



(Chief Judge Kane)

MEMORANDUM

Before the Court are two Rule 12(b)(6) Motions to Dismiss filed by Defendant Douglas Fishel ("Fishel") (Doc. No. 66), and Defendants Ronald Balutis ("Balutis"), Timothy Beard ("Beard"), and Hamilton Township (Doc. No. 73). The motions are ripe for disposition. For the reasons that follow, the Court will deny Defendant Fishel's motion and grant in part Defendants Balutis, Beard, and Hamilton Township's motion.

I. BACKGROUND

A. Factual Background

Plaintiff David R. Lease ("Lease") owns property at 160-170 Gun Club Road in Hamilton Township, Adams County, Pennsylvania. (Doc. No. 65 ¶ 17.) The allegations in this amended complaint arise out of a land development dispute between Defendant Hamilton Township and Lease. (Id. ¶ 8.) Lease pursued this dispute in litigation with Hamilton Township in the Adams County Court of Common Pleas. (Id.) On June 18, 2004, the court granted him summary judgment in the case, which decision was affirmed on appeal. (Id. ¶¶ 8-9.) Lease alleges that the various individual Defendants took retaliatory actions towards him as a result of this successful litigation against Hamilton Township. (Id. ¶12.)

Defendant Balutis was employed as a code enforcement officer for Hamilton Township during the events described in the amended complaint. Defendant Beard was employed as a supervisor in Hamilton Township. On or around May 31, 2006, Balutis entered onto and inspected Lease's property pursuant to authorization from the Adams County Court of Common Pleas to inspect the property and check for "code violations." (Id. ¶ 18.) During his search, it is alleged that Balutis went beyond the scope of the court's authorization by inspecting rafters and the construction of the property. (Id. ¶ 19.) Approximately a week after this search, Balutis returned to the property with Beard, who started measuring the parking lots on the property to check for zoning violations. (Id. ¶ 24.) It is alleged that this inspection into zoning violations went beyond the court's authorization to search for "code violations." (Id. ¶ 24.)

In addition to the above described searches, Lease contends that Balutis engaged in other retaliatory behavior against him after his successful litigation against Hamilton Township. For instance, "Balutis drove slowly by [Lease's] property and wrote things on a clipboard as he passed by." (Id. ¶ 39.) On one such occasion, Balutis made an obscene gesture with his middle finger toward Lease. (Id. ¶ 40.) Balutis also allegedly refused Lease's requests for certain permits with no justifiable basis (Id. ¶ 41), improperly interfered with Lease's purchases of adjoining property (Id. ¶ 42), and stopped Lease from completing projects on his property, physically removing him from his tractor at one point. (Id. ¶¶ 43-46).

Lease also asserts that he was retaliated against by Defendant Fishel, who was employed as a police officer for Hamilton Township during the events described in the amended complaint. (Id. ¶ 42.) Lease alleges that Fishel approached him in a plumbing supply store after successfully pursuing the above-mentioned litigation against Hamilton Township and after initiating follow-up federal litigation in this Court.*fn1 (Id. ¶ 53.) In the heated exchange that followed, Fishel allegedly referred to Lease as a "gold digger." (Id. ¶ 53.) Fishel also threatened that he would "get" Lease if he did not withdraw the federal lawsuit in this Court. (Id. ¶¶ 54-55.) In another incident, Fishel also allegedly attempted to back over Lease with his vehicle while Lease was pumping gas. (Id. ¶ 56.)

Finally, Lease alleges that Hamilton Township failed to properly train and supervise its employees "not to retaliate against citizens for seeking a redress of their grievances." (Id. ¶ 62.) He also alleges that despite being notified of Beard, Balutis, and Fishel's retaliatory actions, Hamilton Township has failed to punish them or take appropriate actions to prevent further retaliatory acts against Lease. (Id. ¶ 64.)

B. Procedural Background

Lease filed his amended complaint in this action on April 23, 2009. (Id.) In his amended complaint, Lease has advanced several claims under 42 U.S.C. § 1983 against the Defendants for violation of his rights under the First and Fourth Amendments. (Id.) Lease also brings a claim for civil conspiracy against Balutis and Beard, contending that they conspired to violate these rights by "intentionally taking actions to harass and intimidate [Lease]." (Id. ¶ 36.)

C. Standard of Review

In analyzing a complaint under Rule 12(b)(6), "courts accept all factual allegations as true, construe the complaint in the light most favorable to the plaintiff, and determine whether, under any reasonable reading of the complaint, the plaintiff may be entitled to relief." Phillips v. County of Allegheny, 515 F.3d 224, 233 (3d Cir. 2008) (quoting Pinker v. Roche Holdings Ltd., 292 F.3d 361, 374 n.7 (3d Cir. 2002)). The plaintiff must provide more than a formulaic recitation of a claim's elements that amounts to mere labels and conclusions. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). "[C]onclusory or 'bare-bones' allegations will no longer survive a motion to dismiss . . . ." Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d Cir. 2009) (citing Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009)). The complaint's "factual allegations must be enough to raise a right to relief above the speculative level." Twombly, 550 U.S. at 555. Accordingly, "to prevent dismissal, all civil complaints must now set out 'sufficient factual matter' to show that the claim is facially plausible." Fowler, 548 F.3d at 210.

"To state a claim under § 1983, a plaintiff must allege the violation of a right secured by the Constitution and laws of the United States, and must show that the alleged deprivation was committed by a person acting under color of state law." Harvey v. Plains Tp. Police Dept., 421 F.3d 185, 189 (3d Cir. 2005) (quoting West v. Atkins, 487 U.S. 42, 48 (1988)).

II. DEFENDANT FISHEL

In his motion to dismiss, Fishel argues that Lease's claims against him should be dismissed because they were brought after the expiration of the applicable statute of limitations and fail to state a viable claim. (Doc. No. 68 at 3, 5.) The Court will consider these claims in turn.

A. Statute of Limitations

The Supreme Court has instructed that § 1983 claims are properly characterized as tort actions for the recovery of damages for personal injury, and that federal courts must therefore borrow the statute of limitations governing personal injury actions from the state where the § 1983 action was brought. Wilson v. Garcia, 471 U.S. 261, 275-76 (1985). In Wilson, the Supreme Court stated broadly that federal courts must select "the one most appropriate statute of limitations for all § 1983 claims." Id. at 275 (emphasis added). Pennsylvania subjects personal injury actions to a two-year limitations period. 42 Pa. Cons. Stat. Ann. § 5524; see also Kost v. Kozakiewicz, 1 F.3d 176, 189-90 (3d Cir. 1993) (holding that Pennsylvania's two-year statute of limitations applies to claims for violations of constitutional rights brought pursuant to 42 U.S.C. § 1983).

Fishel asserts that the claims in Lease's amended complaint, filed on April 23, 2009, are based on conduct that allegedly occurred in November and December 2006, well before the applicable two-year statute of limitations in Pennsylvania. (Doc. No. 68 at 3.) Though the original complaint in this matter was timely filed on January 2, 2007 (Doc. No. 1), Fishel argues that it did not adequately provide notice of all the allegations raised in the amended complaint. (Doc. No. 68 at 4.) Citing Rule 8 of the Federal Rules of Civil Procedure, Lease argues that "the averments of the original complaint should have put [Fishel] on notice of the claims . . . involving the incident at the store and the incident at the gas pump where Defendant Fishel attempted to intimidate the Plaintiff for exercising his First Amendment rights to pursue a redress of his grievances in court." (Doc. No. 76 at 4.)

Because there was a timely complaint in this matter, the Court must determine whether the claims in the amended complaint properly relate back to the date of the original pleading. Rule 15(c)(1)(B) of the Federal Rules of Civil Procedure provides the applicable framework for the relation-back analysis in this case, where Lease is not attempting to name a new party. Rule 15(c)(1)(B) provides that "[a]n amendment to a pleading relates back to the date of the original pleading when: . . . the amendment asserts a claim or defense that arose out of the conduct, transaction or occurrence set out-or attempted to be set out-in the original pleading . . . ." Fed. R. Civ. P. 15(c)(1)(B). The rationale behind this rule is that "a party is not entitled to the protection of the statute of limitations based upon the later assertion by amendment of a claim or defense that arises out of the same conduct, transaction, or occurrence set forth in the timely filed original pleading." Bensel v. Allied Pilots Ass'n, 387 F.3d 298, 310 (3d Cir. 2004). Amendments that restate a claim brought in the original complaint "with greater particularity or amplify the factual circumstances surrounding the pertinent conduct, transaction, or occurrence in the preceding pleading" should therefore be permitted to relate back. Id. (citing Clipper Exxpress v. Rocky Mt. Motor Tariff Bureau, Inc., 690 F.2d 1240, 1259 n.29 (9th Cir. 1982)). Accordingly, making this determination involves reviewing the two pleadings to search for a common core of operative facts such that "the opposing party has had fair notice of the general fact situation and legal theory upon which the amending party proceeds." Id. (citing Michelsen v. Penney, 135 F.2d 409, 416-17 (2d Cir. 1943)).

As discussed by the Court in a prior order, the original complaint in this case was confusing at points and did not comply with the Federal Rules. (Doc. No. 63 at 4.) Despite this, after review of the two pleadings, it is clear that the original complaint provided Fishel with fair notice of the general fact situation and legal theory continued in the amended complaint. Both pleadings clearly set out or attempt to set out a First Amendment retaliation claim against Fishel. (Doc. No. 1 at 18, Doc. No. 65 ΒΆ 59.) Both of the pleadings also set out similar factual allegations regarding this retaliation claim, such as ...


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