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Theodore Bush and Pamela Bush v. City of Scranton

October 26, 2011

THEODORE BUSH AND PAMELA BUSH
PLAINTIFFS
v.
CITY OF SCRANTON, MICHAEL MITCHELL, INDIVIDUALLY,
MARK SEITZINGER, INDIVIDUALLY AND CARL GRAZIANO, INDIVIDUALLY DEFENDANTS



The opinion of the court was delivered by: Judge Munley

MEMORANDUM

Before the court for disposition is defendants' motion to dismiss (Doc. 4). The motion has been briefed and is ripe for disposition.

BACKGROUND

Plaintiffs Theodore and Pamela Bush owned a house and garage located at 311-313 Ferdinand Street, Scranton, Pennsylvania. (Compl. ¶ 11 (Doc. 1)). On July 21, 2009, the house was severely damaged by fire. (Id. ¶ 13). That same day Michael Mitchell, Deputy Director of Safety and Conservation for the Department of Licensing, Inspections and Permits for the City of Scranton, sent a letter to plaintiffs' house. (Id. ¶ 14). The letter provided notice that the house was scheduled for immediate demolition as a health and safety hazard to the public. (Id.) Plaintiffs allege they did not receive the letter and therefore did not have notice of the demolition. (Id.)

On July 22, 2009, a neighbor told Plaintiff Pamela Bush that the City of Scranton was preparing to raze the house. (Id. ¶ 15). Plaintiff Pamela Bush arrived at the property by 8:30 a.m. and offered to have a competent demolition contractor raze the house. Defendants refused. (Id. ¶¶ 16-18).

On the same day that the house was demolished, Mark Seitzinger, Director of Licensing for the City, ordered that the plaintiffs' garage also be razed. (Id. ¶¶ 14, 22). Plaintiffs allege that the garage was razed without notice or opportunity to contest or appeal that decision. (Id. ¶¶ 21, 23).

Plaintiffs later asked the City Solicitor why the garage had also been destroyed, alleging that the garage was structurally sound and did not pose any threat to the life, health or safety to the public. (Id. ¶ 25). The City Solicitor explained to the plaintiffs that the City Engineer had opined that the garage should be razed because it would be unreasonable to repair the structure. (Id. ¶ 25).

On April 11, 2011, plaintiffs filed their complaint. (Doc. 1). Plaintiffs name the City of Scranton ("City") and the following officials in their individual capacities as defendants: Michael Mitchell, Deputy Director of Safety and Conservation for the City; Mark Seitzinger, Director of Licensing, Inspections, and Permits for the City; and Carl Graziano, Building Inspector for the City.

Plaintiffs claim that the City took the plaintiffs' property without providing them with just compensation in violation of the Fifth and Fourteenth Amendments of the United States Constitution. They claim that the individually named defendants deprived the plaintiffs of their property rights without due process of law in violation of the Fourteenth Amendment under the procedural component of the Due Process Clause. Plaintiffs also claim that the individually named defendants conspired among themselves to effectuate the total demolition of the plaintiffs' garage in violation of their federally protected rights. Plaintiffs assert compensatory damages plus attorneys fees, interest, and costs. Plaintiffs also seek punitive damages against the individually named defendants.

Defendants filed the instant motion to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, bringing the case to its present posture.

JURISDICTION

The court has federal question jurisdiction over this case brought under section 1983 for violation of plaintiffs' constitutional rights. See 28 U.S.C. § 1331 ("The district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States."); 28 U.S.C. §§ 1343(a)(3), (4) (granting district courts jurisdiction over civil actions brought to redress deprivations of constitutional or statutory rights by way of damages or equitable relief).

LEGAL STANDARD

When a 12(b)(6) motion is filed, the sufficiency of a complaint's allegations are tested. Granting the motion is appropriate if, accepting as true all the facts alleged in the complaint, the plaintiff has not pleaded "enough facts to state a claim to relief that is plausible on its face," or put another way, "nudged [his or her] claims across the line from conceivable to plausible." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). The Third Circuit interprets Twombly to require the plaintiff to describe "enough facts to raise a reasonable expectation that discovery will reveal evidence of" each necessary element of the claims alleged in the complaint. Phillips v. County of Allegheny, 515 F.3d 224, 234 (3d Cir. ...


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