The opinion of the court was delivered by: Judge Sylvia H. Rambo
Pro se Plaintiff DeLaine Andrews has filed suit under 42 U.S.C. §§ 1981, 1982, and 1983, asserting numerous violations of her constitutional rights. Plaintiff claims that she was treated less favorably than other similarly-situated property owners with respect to a condemnation order regarding her property. Defendants have moved for summary judgment. (Doc. 115.) For the following reasons, Defendants' motion will be granted in part and denied in part.
The following facts are undisputed, except where noted.*fn1
Plaintiff, an African American, owned the property that is
the subject of this suit, located at 342 South 25th Street, Harrisburg, Pennsylvania ("the property"). (SMF ¶
1.) Defendant Bureau of Codes Administration Office is a division of
the Department of Building and Housing Development which is a
government agency within the City of Harrisburg. (Second Amended
Complaint (hereinafter "Compl." ), Doc. 28, at ¶ 6.)*fn2
Defendant David Patton is an employee of the Bureau of Codes. (SMF ¶ 2.) Plaintiff states the Patton holds the title of Codes Administrator (Compl. ¶ 7), whereas Defendants state that he is the Deputy Director of Codes Enforcement (Doc. 129, Def.'s Answer, ¶ 7). Plaintiff states that Defendant Earl Dieffenderfer is a Codes Enforcement Officer for the City of Harrisburg. (Compl. ¶ 8.) Defendants deny this allegation. (Def.'s Answer, ¶ 8.) Lastly, Plaintiff states that Defendant Arden Emerck is the Assistant Director of Building and Housing Development (Compl. ¶ 9), whereas Defendants claim he is the Assistant Codes Administrator (Def.'s Answer, ¶ 9). Regardless, the court does not find the disparities in these individuals' titles to have any dispositive affect on its ruling.
In March or April, 2006, a fire occurred at Plaintiff's property. (SMF ¶ 11.) Plaintiff believes the fire was caused by a five-gallon can of polyurethane in the house, which she believes was used by children to start the fire. (SMF ¶ 12.) The property sustained damages, which included broken windows in the back and in the living room; damaged doors, one of which had to be boarded up; soot damage throughout the house; damage to the walls in the living room, dining room and kitchen; and damage to walls on the second floor. (SMF ¶ 13.) Furthermore, electric service was disconnected as a result of the fire. (SMF ¶ 14.) The property did not have gas service for as long as Plaintiff owned it. (Id.)
On September 7, 2006, Defendant Dieffenderfer performed an inspection at the property. (SMF ¶ 15.) Dieffenderfer noted the following violations and unsafe conditions:
Structure open to unauthorized entry, utilities are off, door and window units damaged/missing, structure has fire damage rendering it unsafe, open allowing weather to interior. (SMF ¶ 16; Doc. 16-2.)
Dieffenderfer's overall evaluation of the building states:
Structure is vacant, deteriorated due to lack of maintenance and fire, it is a blight to the neighborhood, a fire hazard, a hazard to public health and safety, inspection limited to exterior views. (Id.) Plaintiff claims that a structural engineer concluded that the property was structurally sound and any damage was only cosmetic damage. (Doc. 116-1, Andrews Dep., pp. 85, 121-22.)
On September 11, 2006, the City of Harrisburg's Department of Building and Housing Development issued Condemnation Order No. 2006-120 against Plaintiff's property, requiring Plaintiff to procure the appropriate permits to rehabilitate the structure within fifteen days of the order, or face demolition. (SMF ¶ 18; Doc. 16-2.) The order also advised Plaintiff of her right to appeal the order within fifteen days and explained that a $100 application fee or proof of indigence must accompany the appeal. (Id.) The condemnation order was based on Dieffenderfer's inspection on September 7, 2006. (SMF ¶ 19.) At the time of the condemnation order, neither the gas service nor the electric service was turned on at the property and all the windows were knocked out in the back of the property, as were the living room windows in the front of the property. (SMF ¶¶ 20-22.) Following the fire, children were continuing to vandalize her property. (SMF ¶ 23.) Plaintiff received a copy of the condemnation order and never appealed the order nor called anyone in the Bureau of Codes to request more time to fix the property. (SMF ¶¶ 25-26.) Plaintiff claims, however, that she wrote a letter to the Bureau of Codes stating that she wanted to appeal but was unable to do so because of financial reasons. (Doc. 116-1, Andrews Dep., pp. 75-77, 106.) Defendants Emerick and Patton advised Plaintiff that her letter was insufficient to show her indigence and Plaintiff took no further action to pursue an appeal. (Id. at pp. 76, 106.)
Defendant Dieffenderfer went back to the property on October 19, 2006 as a result of complaints the Bureau of Codes received regarding the property. (SMF ¶ 28.) Seeing no evidence that any work was taking place to rehabilitate the property, a citation was issued on October 19, 2006, with a hearing date set for May 29, 2007. (SMF ¶ 29.) Dieffenderfer received another complaint about the property, resulting in another citation issued on November 9, 2006. (SMF ¶ 30.) On February 14, 2007, Dieffenderfer returned to the property and, finding no evidence of rehabilitation, issued a third citation. (SMF ¶ 32.) A fourth citation was issued on February 26, 2007, after Dieffenderfer once again found the property in the same condition. (SMF ¶ 33.)
A hearing on these citations before the District Justice was held on May 29, 2007. (SMF ¶ 34.) Plaintiff did not attend the hearing and was found guilty of the citations. (SMF ¶ 35.) Plaintiff was granted a nunc pro tunc summary appeal, and a hearing on that appeal was scheduled for April 29, 2008, in the Court of Common Pleas of Dauphin County. (SMF ¶ 36; Doc. 116-3.)
Prior to the April 2008 hearing, Plaintiff met with Dieffenderfer at the property on November 13, 2007. (SMF ¶ 38.) At this meeting, Dieffenderfer observed fire damage and saw minimal evidence of work having been done. (SMF ¶ 39.) Plaintiff disputes that minimal work was completed, and claims that she installed new windows, began replacing plaster, and substantially completed the electrical work and the electricity was functioning. (Doc. 116-1, Andrews Dep., pp. 129-130.) Dieffenderfer gave Plaintiff a Narrative Inspection Form with a list of items that needed to be corrected within thirty days to correct the violations that existed. (SMF ¶ 40.) The list included: sealing openings in the party wall in the kitchen and living room, replacing missing or damaged windows, completing repairs to the electrical system and having it inspected by a third party, and completely rehabilitating the kitchen and activating all utilities so the heating system could be checked. (SMF ¶ 41; Doc. 116-4.) Plaintiff also claims that Defendants Dieffenderfer and Emerick added additional housing compliance requirements to the original condemnation order including the requirement to have "heat turned on," which is not listed as a requirement for vacant houses in any city ordinance or maintenance code. (Doc. 123 ¶ 21.)
On April 24, 2008, three days prior to the scheduled hearing, Dieffenderfer visited the property and found that Plaintiff had largely failed to complete the list of items on the Narrative Inspection Form, noting that the back windows were still boarded, and broken windows and fire debris remained on the side of the property. (SMF ¶¶ 42-43.) Defendant also took a photograph of the property's electrical meter base, with no meter in it. (SMF ¶ 44.)
A hearing in the Dauphin County Court of Common Pleas was held on April 29, 2008. Plaintiff was again found guilty of the three citations. (SMF ¶ 46; Doc. 116-3, Transcript of proceeding.) The court stated "there is just no question at all about [Plaintiff's] failure to act diligently or . . . reasonably." (Doc. 116-3 at 94 of 100.) Plaintiff was given an option to avoid jail time by either selling the property, or rehabilitating the property such that an occupancy permit could be issued within sixty days of the hearing. (SMF ¶ 48.) Ultimately, Plaintiff decided to sell the property for less than $10,000, despite a market value that she estimated at $79,000. (SMF ¶ 49; Doc. 116-1, Andrews Dep., p. 152.) The property was sold to Professional Grade, Inc. on June 30, 2008. (SMF ¶50.) According to a Delaware Corporation Report, DeLaine Andrews of 1908 Oak Lane Road, Wilmington, Delaware, is listed as the registered agent of Professional Grade, Inc. (SMF ¶ 51; Doc. 116-6.) As of March, 2010, the front and side windows of the property were still boarded. (SMF ¶ 52; Doc. 116-7.)
Plaintiff filed a complaint on September 8, 2008. (Doc. 1.)
Defendants filed a motion to dismiss the complaint on December 22,
2008. (Doc. 10.) By order dated February 9, 2009, Plaintiff was granted leave to
file an amended complaint (Doc. 19) and her amended complaint was
filed that same day (Doc. 20). Defendants filed their answer on March
5, 2009. (Doc. 24.) Plaintiff then filed a second amended complaint on
August 14, 2009, having been granted leave by the court to do so.
(Doc. 28.) The complaint alleges that Defendants' actions amount
to a criminal prosecution that was more harsh than other
similarly-situated landowners as a result of her minority status and
in retaliation for her filing prior civil rights complaints with City
of Harrisburg Human Relations Commission. (Compl. ¶ 21.) The complaint
also alleges that Defendant Dieffenderfer and another code enforcement
officer discussed measures to "get her back" saying things such as
"don't worry, you know I don't like those people." (Id. ¶ 23.) It
further alleges that Defendant Dieffenderfer said, within earshot of
both Plaintiff and Plaintiff's husband that "he would never allow 'you
niggers' to win" and that Dieffenderfer used similar racial epithets
against other minority owners. (Id. ¶¶ 68, 69.) Read generously, the
complaint brings the following claims: Count one -- First Amendment
retaliation and access to courts claims; Count three*fn3
-- Fourth Amendment unreasonable seizure claim and violation
of the Fair Housing Act, 42 U.S.C. § 1982; Count four -- Fifth
Amendment violation involving a government deprivation without just
compensation; Count five -- Fourteenth Amendment procedural and
substantive due process violations; Count six -- Fourteenth Amendment
equal protection violations; Count seven -- violations of 42 U.S.C.
§1981 (and another Fourteenth Amendment Equal Protection Claim); and
Count eight -- Abuse of process and wrongful use of legal
Defendants answered the complaint on August 24, 2009. (Doc. 29.) Defendants never re-filed a motion to dismiss in response to the amended complaints but continue to maintain that all their actions were reasonable under the circumstances and no constitutional violations occurred. Following numerous extensions and an unsuccessful settlement conference, trial was scheduled for June 27, 2011. However, following a pretrial conference and a review of the parties' pretrial memoranda, the court issued an order continuing the trial, noting that: [I]t is evident that trial in this matter in the present state is not yet appropriate as there is confusion regarding what claims are being properly raised. Presently, the claims at issue appear to be duplicitous, imprecise, and possibly insufficient. The court notes that a motion to dismiss was previously filed by Defendants regarding Plaintiff's original complaint. While that motion was pending, Plaintiff was granted leave to file an amended complaint, thereby mooting the motion to dismiss. A second amended complaint was later filed. No motion to dismiss was filed thereafter regarding the second amended complaint. It is clear this case would benefit from a clarification of the claims at issue. (Doc. 114.)
Defendants thereafter filed a motion for summary judgment on July 15, 2011 (Doc. 115) accompanied by a statement of material facts (Doc. 116) and a brief in support (Doc. 117). Defendants move for summary judgment as to: (1) all claims against the Bureau of Codes, (2) Plaintiff's procedural due process claim,*fn4 (3) Plaintiff's substantive due process claim, (4) Plaintiff's equal protection claim, and (5) the individual Defendants on the basis of qualified immunity.*fn5 Following an extension, Plaintiff filed a brief in opposition on September 14, 2011 (Doc. 122) and counterstatement of material facts (Doc. 123). No reply brief was filed. On October 20, 2011, the court issued an order staying the case in light of the Suggestion of Bankruptcy filed by counsel for Defendant City of Harrisburg. (Doc. 125.) That stay was lifted by court order dated December 7, 2011. (Doc. 126.) Thus, the motion is now ripe for disposition.
Federal Rule of Civil Procedure 56 sets forth the standard and procedures for the grant of summary judgment. Rule 56(a) provides, "[t]he court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to summary judgment as a matter of law. Fed R. Civ. P. 56(a)*fn6 ; see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-323. A factual dispute is "material" if it might affect the outcome of the suit under the applicable substantive law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A factual dispute is "genuine" only if there is a sufficient evidentiary basis that would allow a reasonable fact-finder to return a verdict for the nonmoving party. Id. When evaluating a motion for summary judgment, a court "must view the facts in the light most favorable to the non-moving party," and draw all reasonable inferences in favor of the same. Hugh v. Butler Cnty. Family YMCA, 418 F.3d 265, 267 (3d Cir. 2005), cert denied, 546 U.S. 1094 (2006).
The moving party bears the initial burden of demonstrating the absence of a disputed issue of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986). "Once the moving party points to evidence demonstrating no issue of material fact exists, the non-moving party has the duty to set forth specific facts showing that a genuine issue of material fact exists and that a reasonable factfinder could rule in its favor." Azur v. Chase Bank, USA, Nat'l Ass'n, 601 F.3d 212, 216 (3d Cir. 2010). The nonmoving party may not simply sit back and rest on the allegations in its complaint; instead, it must "go beyond the pleadings and by [its] own affidavits, or by the depositions, answers to interrogatories, and admissions on file, designate specific facts showing that there is a genuine issue for trial." Celotex Corp., 477 U.S. at 324 (internal quotations omitted); see also Saldana v. Kmart Corp, 260 F.3d 228, 232 (3d Cir. 2001) (citations omitted). Summary judgment should be granted where a party "fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden at trial." Celotex, 477 U.S. at 322-23. "'Such affirmative evidence -- regardless of whether it is direct or circumstantial -- must amount to more than a scintilla, but may amount to less (in the evaluation of the court) than a preponderance.'" Saldana, 260 F.3d at 232 (quoting Williams v. Borough of West Chester, 891 F.2d 458, 460-61 (3d Cir. 1989)).