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Horton v. USA Environmental Management

United States District Court, Third Circuit

September 24, 2013




Currently pending before the Court is the Motion by Defendant USA Environmental Management, Inc. to Dismiss Count Two of the Amended Complaint Pursuant to Rule 12(b)(6). For the following reasons, the Motion is granted and Count Two as against USA Environmental Management, Inc. is dismissed without prejudice to Plaintiff’s leave to amend his Complaint.


According to the facts set forth in the Amended Complaint, Plaintiff Anthony Horton purchased a property at 5943 Belmar Street, Philadelphia, PA (“Belmar Property”) with the intention to resell it. (Am. Compl. ¶¶ 9–10.) Plaintiff paid $8, 000 for the Belmar Property and, at the time of transfer, there were no liens against it and no Licenses & Inspections violations. (Id. ¶ 11–12.) Shortly after purchasing the Belmar Property, Plaintiff spent $10, 000 to repair a load-bearing exterior wall on the back. (Id. ¶ 13.) At some point during Plaintiff’s ownership of the Belmar Property, Defendant City of Philadelphia issued a Complaint that the Property was in violation of various codes. (Id. ¶ 14.) On February 11, 2011, Plaintiff received a permit from Defendant City of Philadelphia to perform major alterations on the Belmar Property, including fixing drywall, which had been subject to a violation. (Id. ¶ 15.) Upon completion of the alterations, Defendant sent Plaintiff a complaint concerning a bulged wall and various general items of rehab, which was marked by Defendant as “complied”—meaning the items were no longer an issue. (Id. ¶ 16.)

On September 7, 2011, Defendants came to the Belmar Property to demolish the structure. (Id. ¶ 17.) Plaintiff called the City Inspector’s Office to confirm that this was a mistake and that the Belmar Property was not on the demolition list. (Id. ¶ 18.) City Inspector John Lech told Plaintiff not to worry, that the Belmar Property was up to code, and that it was not on the demolition list. (Id. ¶ 19.) Nonetheless, on September 14, 2011, a demolition crew was sent by the City to the Belmar Property and, this time, no one was on site to stop the demolition. (Id. ¶ 20.) Acting on behalf of, at the direction of, and under allegedly conveyed authority from the City of Philadelphia, Defendant USA Environmental Management, Inc. (“USAEM”) demolished significant portions of the subject property. (Id. ¶¶ 21–22.) When Plaintiff learned that the Belmar Property was demolished, he called the Chief City Inspector to determine why the demolition was ordered. (Id. ¶ 23.) Chief City Inspector Albert McCarthy stated, “I f—ed up” and indicated that he did not check to verify that the Belmar Property was not on the demolition list. (Id. ¶ 24.)

Thereafter, on June 24, 2013, Plaintiff initiated the present action and, on July 29, 2013, filed a two-count Amended Complaint alleging (1) negligence and (2) a violation of the Fourth and Fourteenth Amendments to the Constitution pursuant to 42 U.S.C. § 1983. The Amended Complaint named as Defendants USAEM, the City of Philadelphia, the City of Philadelphia Streets Department, and John Does 1–10.

Defendant USAEM filed the present Motion to Dismiss Count II of the Amended Complaint on August 1, 2013. Plaintiff responded on September 16, 2013, making the present Motion ripe for consideration.


Under Rule 12(b)(6), a defendant bears the burden of demonstrating that the plaintiff has not stated a claim upon which relief can be granted. Fed. R. Civ. P.12(b)(6); see also Hedges v. United States, 404 F.3d 744, 750 (3d Cir. 2005). In Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007), the United States Supreme Court recognized that “a plaintiff’s obligation to provide the ‘grounds’ of his ‘entitle[ment] to relief’ requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Id. at 555. Following these basic dictates, the Supreme Court, in Ashcroft v. Iqbal, 556 U.S. 662 (2009), subsequently defined a two-pronged approach to a court’s review of a motion to dismiss. “First, the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Id. at 678. Thus, although “Rule 8 marks a notable and generous departure from the hyper-technical, code-pleading regime of a prior era . . . it does not unlock the doors of discovery for a plaintiff armed with nothing more than conclusions.” Id. at 678–79. Second, the Supreme Court emphasized that “only a complaint that states a plausible claim for relief survives a motion to dismiss.” Id. at 679. “Determining whether a complaint states a plausible claim for relief will, as the Court of Appeals observed, be a context-specific task that requires the reviewing court to draw on its judicial experience and common sense.” Id.

A complaint does not show an entitlement to relief when the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct. Id.; see also Phillips v. Cnty. of Allegheny, 515 F.3d 224, 232–34 (3d Cir. 2008) (holding that: (1) factual allegations of complaint must provide notice to defendant; (2) complaint must allege facts suggestive of the proscribed conduct; and (3) the complaint’s “‘factual allegations must be enough to raise a right to relief above the speculative level.’” (quoting Twombly, 550 U.S. at 555)); Fowler v. UPMC Shadyside, 578 F.3d 210, 211 (3d Cir. 2009).

Notwithstanding these new dictates, the basic tenets of the Rule 12(b)(6) standard of review have remained static. Spence v. Brownsville Area Sch. Dist., No. Civ.A.08-626, 2008 WL 2779079, at *2 (W.D. Pa. July 15, 2008). The general rules of pleading still require only a short and plain statement of the claim showing that the pleader is entitled to relief and need not contain detailed factual allegations. Phillips, 515 F.3d at 233. Further, the court must “accept all factual allegations in the complaint as true and view them in the light most favorable to the plaintiff.” Buck v. Hampton Twp. Sch. Dist., 452 F.3d 256, 260 (3d Cir. 2006). Finally, the court must “determine whether, under any reasonable reading of the complaint, the plaintiff may be entitled to relief.” Pinkerton v. Roche Holdings Ltd., 292 F.3d 361, 374 n.7 (3d Cir. 2002).


Defendant USAEM presently seeks dismissal of the ยง 1983 claim against it on the theory that it is not a state actor, but rather a for-profit corporation who had a contract with the City of Philadelphia to perform services. It goes on to allege that there are no allegations in the Amended Complaint to suggest that it was acting under color of state law. Accordingly, USAEM asserts that there is no potential basis to hold it liable for the alleged deprivation of ...

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