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Mario Diaz v. City of Scranton Department of Licensing

August 20, 2012


The opinion of the court was delivered by: Judge Munley


Defendant City of Scranton, Department of Licensing, Inspections & Permits (hereinafter "defendant") moves to dismiss plaintiff's civil rights complaint pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim upon which relief can be granted. (Doc. 5). This matter is fully briefed and ripe of disposition. For the following reasons, the court will grant in part and deny in part the motion to dismiss.


The instant civil rights action arose from Plaintiff Mario Diaz's (hereinafter "plaintiff") dispute with defendant over the location and inspection of street vending food carts. Plaintiff operated a street vending food cart. (Doc. 1, Compl. ¶ 8). For some time before and after January 2, 2010, plaintiff operated his cart in close proximity to the Hardware Bar, located at 519 Linden Street in Scranton, Pennsylvania. (Id.) Scranton city ordinances require that street vendors obtain appropriate permits from the City of Scranton and operate at least 100 feet from the front of neighboring businesses. (Id. ¶ 9). The Hardware Bar attracts customers who also patronize food carts. (Id. ¶ 10).

On January 22, 2010, the Hardware Bar held a well attended concert by rapper Vanilla Ice as well as a "Girls Gone Wild" promotional event. (Id. ¶ 11). Prior to January 22, 2010, plaintiff complied with all of defendant's licensing and permitting requirements, plaintiff paid all required fees, and he otherwise complied with all laws and regulations that allowed him to operate a food cart 100 feet from the Hardware Bar. (Id. ¶¶ 12-14). Plaintiff contends that despite his compliance with all applicable requirements, defendant "played favorites" by allowing friends and/or relatives to operate their carts in closer proximity to the Hardware Bar. (Id. ¶ 15).

Despite plaintiff's complaints to defendant, and efforts to comply with applicable city ordinances, plaintiff's cart was frequently subjected to inspections and subsequent enforcement of the 100 foot rule. (Id. ¶¶ 16-18). Plaintiff alleges that defendant's enforcement officers required him to "move his cart so that individuals who were friendly with the City of Scranton officials could have their food cart (sic) located in a more convenient location, all to the Plaintiff's detriment." (Id. ¶ 18). Plaintiff contends that the alleged acts of favoritism on the part of city officials occurred on January 22, 2010 and "have been recurring on repeated dates and times thereafter." (Id. ¶ 20).

Plaintiff filed a claim with the Pennsylvania Human Rights Commission, which has issued a "right to sue" letter. (Id. ¶ 19). On March 5, 2012, Plaintiff filed the instant two-count civil rights complaint pursuant to 42 U.S.C. § 1983.

In Count I, plaintiff contends that defendant deprived him of property without due process of law in violation of the Fourteenth Amendment. (Id. ¶¶ 21-23). In Count II, plaintiff argues that defendant's conduct violated the Equal Protection Clause of the Fourteenth Amendment. (Id. ¶¶ 24-26). Defendant responded to the complaint with a timely motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6), (Doc. 5), bringing this case to its current posture.


Plaintiff asserts civil rights claims under 42 U.S.C. § 1983 (hereinafter "Section 1983"). The court has jurisdiction pursuant to 28 U.S.C. § 1331, which provides that "[t]he district courts shall have original jurisdiction of all actions arising under the Constitution, laws, or treaties of the United States." Standard of Review

When a 12(b)(6) motion is filed, the sufficiency of the allegations in the complaint are tested. All well-pleaded allegations of the complaint must be viewed as true and in the light most favorable to the non-movant to determine whether, "'under any reasonable reading of the pleadings, the plaintiff may be entitled to relief.'" Colburn v. Upper Darby Twp., 838 F.2d 663, 665-66 (3d Cir. 1988) (quoting Estate of Bailey by Oare v. Cnty. of York, 768 F.2d 503, 506 (3d Cir. 1985)). The plaintiff must 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. Cnty. of Allegheny, 515 F.3d 224, 234 (3d Cir. 2008) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556 (2007)). Moreover, the plaintiff must allege facts that "justify moving the case beyond the pleadings to the next stage of litigation." Id. at 234-35. In evaluating the sufficiency of a complaint the court may also consider "matters of public record, orders, exhibits attached to the complaint and items appearing in the record of the case." Oshiver v. Levin, Fishbein, Sedran & Berman, 38 F.3d 1380, 1384 n.2 (3d Cir. 1994) (citations omitted). The court does not have to accept legal conclusions or unwarranted factual inferences. See Curay-Cramer v. Ursuline Acad. of Wilmington, Del., Inc., 450 F.3d 130, 133 (3d Cir. 2006) (citing Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 906 (3d Cir. 1997)).

The federal rules require only that plaintiff provide "a short and plain statement of the claim showing that the pleader is entitled to relief," a standard which "does not require detailed factual allegations," but a plaintiff must make "a showing, rather than a blanket assertion, of entitlement to relief that rises above the speculative level." McTernan v. City of York, 564 F.3d 636, 646 (3d Cir. 2009) (citations and internal quotations omitted). The "complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 570). Such "facial plausibility" exists "when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. (citing Twombly, 550 U.S. at 556). "[T]he factual detail in a complaint [cannot be] so undeveloped that it does not provide a defendant the type of notice of claim which is contemplated by Rule 8." Phillips, 515 F.3d at 232 (citation omitted). "Though a complaint 'does not need detailed factual allegations, . . . a formulaic recitation of the elements of a cause of action will not do.'" DelRio-Mocci v. Connolly Props., Inc., 672 F.3d 241, 245 (3d Cir. 2012) (quoting Twombly, 550 U.S. at 555).

The Supreme Court has counseled that a court examining a motion to dismiss should, "begin by identifying pleadings that, because they are no more than conclusions, are not entitled to the assumption of truth." Iqbal, 556 U.S. at 679. Next, the court should make a context-specific inquiry into the "factual allegations in [the] ...

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