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Campbell v. Conroy

United States District Court, W.D. Pennsylvania

September 23, 2014

GEORGE E. CONROY, et al., Defendants

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[Copyrighted Material Omitted]

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CRAIG CAMPBELL, Plaintiff, Pro se, New Kensington, PA.


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Joy Flowers Conti, Chief United States District Judge.

I. Introduction

This civil action arises out of a dispute between plaintiff Craig Campbell (" Campbell" or " plaintiff" ) and various officials of Harrison Township, Pennsylvania (the " Township" ) concerning land usage issues and the Township's escrowing of insurance proceeds following two fires which occurred on plaintiff's Harrison Township property. Plaintiff filed a pro se complaint naming as defendants George E. Conroy (" Conroy" ), William R. Poston (" Poston'), Robin Bergstrom (" Bergstrom" ), William E. Mitchell, Sr. (" Mitchell" ), Gary J. Lilly (" Lilly" ), Faith A. Payne (" Payne" ), Joe Marino (" Marino" ), Norb Cieslinski (" Cieslinski" ), and the Township (collectively with the individual defendants, " defendants" ). He contends that defendants violated certain of his federal constitutional rights by withholding insurance proceeds, by failing to properly enforce the law, and by effectuating a " taking" of his property.[1]

Presently pending before the court are defendants' motion to dismiss or, alternatively, motion for summary judgment (ECF No. 4) and plaintiff's motion to amend the complaint (ECF No. 22). For the reasons that follow, defendants' motion to dismiss will be granted and plaintiff's motion to amend will also be granted.

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II. Plaintiff's Allegations[2]

The complaint in this matter (ECF No. 1) appears to set forth four claims against defendants based upon the alleged violation of plaintiff's rights under the Fifth and Fourteenth Amendments to the U.S. Constitution. Count I (referred to in the complaint as " Section I" ) asserts a violation of plaintiff's substantive due process rights based on his " [p]roperty systematically being devalued." (Compl. at 2.) Plaintiff alleges that " [a]ll my properties in Harrison Township have been broken into" and the Township " does not provide needed patrols by the police to protect my property." (Compl. ¶ ¶ 1-2.) He states " [t]here is no way to protect [his] property due to the negligence of the township" ( id. ¶ 5), and, because of the crime in the Natrona section of the Township, his property " has lower significant value" ( id. ¶ 3) and he is " being forced to sell properties at a significant [loss]" ( id. ¶ 8). Plaintiff avers that " [p]roperty rights have been violated when the township seeks to regulate commerce on residential property." ( Id. ¶ 9.)

In Count II plaintiff alleges that his " [p]roperty is being taken without due process." (Compl. at 3.) Plaintiff claims that repairs totaling $4,900.00 were made to the roof of the building on his 58-60 Garfield Street property. (Compl. ¶ 12.) He submitted a bill to the Township " as directed by Faith Payne," who " had knowledge of the work that was going to be done." ( Id. ¶ 13.) Plaintiff " was informed later that this was not by procedure," and he contends that Payne " had a duty before this all happened to inform me of the correct procedure." ( Id. ¶ 13.) He complains that " [t]o date the bill has not been paid by the township" (Compl. ¶ 14), and he asks for a full accounting of all monies being held by the Township for repairs to be done on the property. ( Id. ¶ 15.) Plaintiff avers that " [t]he use of the building is our unquestionable property right. It's [sic] occupancy as a rental unit in the future is at my discretion and it not [sic] the dictates of Harrison Township." ( Id. ¶ 17.) He maintains that " [s]ince no occupancy is being pursued no inspection for an occupancy permit is needed." ( Id.)

Plaintiff's third claim asserts a violation of his equal protection rights premised on a theory of selective enforcement of the law. Plaintiff contends that, after he " questioned about [his] fire money" and made " demands on code enforcement to do their job concerning the property sitting across from 68 Chestnut Street Natrona," he was " retaliated against by code enforcement against my property." (Compl. ¶ 18.) He alleges that, during a meeting with code enforcement officers on September 18, 2013, his wife and he presented a bill for the roof repairs ( id. ¶ 22) and pointed out four other nearby properties that were " far worse than ours." ( Id. ¶ 23.) Plaintiff claims he is " being singled out for [his] opinion for the neglect of Harrision Township and for demands of [his] fire money." ( Id. ¶ 26.)

In plaintiff's fourth claim, he asserts a " [t]aking of property rights" based on the Township's Ordinance 1963, § 201, entitled " Transfer of Ownership of Certain Properties" (the " Ordinance" or " Ordinance 1963" ). (Compl. at 6-7; Ex. G to Def.s' Mot. Summ. Judg., ECF No. 4-8.)[3] This

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ordinance places restrictions on the transfer or leasing of dwelling properties in cases where the owner has received a " notice" that the property is out of compliance " with the applicable building code, property maintenance regulations or dangerous buildings ordinance" or where a citation has been issued for violations of the same. See Ordinance 1963, § 201(1) and (8) (" Ordinance 1963" ).

In pertinent part, Ordinance 1963 provides:

No owner of property containing a dwelling unit, which property is subject to a Township notice... shall sell, transfer, mortgage, lease or otherwise dispose of such property or structure subject to such notice without first delivering to the grantee, transferee, mortgagee or lessee a document of property compliance issued by the Township Building inspector or other authorized officer of the Township.

Id. § 201(1). Ordinance 1963 sets forth the conditions under which a document of compliance will be issued, id. § 201(2), and it provides an appeals process in the cases where an individual's application for such documentation is denied. Id. § 201(6). Ordinance 1963 provides that no occupancy or building permit will be issued for properties that are transferred in violation of § 201, id. § 201(3), and violators may be subject to criminal penalties, id. § 201(7).

Plaintiff alleges that Ordinance 1963 effectuates a total economic taking of his property. (Compl. ¶ ¶ 27-29.) He asserts that the " [t]erms and conditions brought about by Township Ordinance No. 1963 makes any transfer of the owners [sic] property specifically 58-60 Garfield Street Natrona unsellable and virtually worthless." ( Id. ¶ 31.) As a result, plaintiff asserts that " no property taxes should be [owed]" ( id.), and the Township should instead pay him the " full value of said property" ( id. ¶ 32).

On November 19, 2013, defendants filed their motion to dismiss or, alternatively, motion for summary judgment (ECF No. 4). Defendants challenge plaintiff's complaint on four grounds. First, they argue that plaintiff did not allege a viable Fourteenth Amendment or Fifth Amendment violation because he failed to exhaust the remedies that are available to him and did not allege that other similarly situated people were differently treated. Second, defendants argue that Ordinance 1963 is a constitutionally valid property regulation and, therefore, plaintiff's Fifth Amendment takings claim fails as a matter of law. Third, defendants argue that plaintiff's claims are barred by the Eleventh Amendment. Lastly, defendants argue that they are entitled to qualified immunity.

On July 9, 2014, plaintiff filed his response to defendants' motion (ECF No. 21). That same day, he filed a motion to amend the complaint (ECF No. 22). On July 24, 2014, defendants filed a brief in opposition to plaintiff's motion (ECF No. 24).

III. Standard of Review

A motion to dismiss filed pursuant to Federal Rule of Civil Procedure 12(b)(6) tests the legal sufficiency of the complaint. Kost v. Kozakiewicz, 1 F.3d 176, 183 (3d Cir. 1993).[4] In deciding a motion to dismiss,

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the court is not opining on whether the plaintiff will be likely to prevail on the merits; rather, when considering a motion to dismiss, the court accepts as true all well-pleaded factual allegations in the complaint and views them in a light most favorable to the plaintiff. U.S. Express Lines Ltd. v. Higgins, 281 F.3d 383, 388 (3d Cir. 2002). While a complaint does not need detailed factual allegations to survive a Rule 12(b)(6) motion to dismiss, a complaint must provide more than labels and conclusions. Bell A. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). A " formulaic recitation of the elements of a cause of action will not do." Id. (citing Papasan v. Allain, 478 U.S. 265, 286, 106 S.Ct. 2932, 92 L.Ed.2d 209 (1986)). " Factual allegations must be enough to raise a right to relief above the speculative level" and " sufficient to state a claim for relief that is plausible on its face." Id. " A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (citing Twombly, 550 U.S. at 556).

The plausibility standard is not akin to a " probability requirement," but it asks for more than a sheer possibility that a defendant has acted unlawfully. ... Where a complaint pleads facts that are " merely consistent with" a defendant's liability, it " stops short of the line between possibility ...

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