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Timoney v. Loughery

United States District Court, E.D. Pennsylvania

December 19, 2014



HARVEY BARTLE, District Judge.

This action arises out of an ownership dispute over a residential property in Upper Gwynedd Township (the "Township"), Montgomery County. Plaintiff Joseph Timoney, Jr. ("plaintiff") has filed suit against the Township and one of its police officers, Edward Tartar ("Tartar") as well as three private individuals: William Loughery; his wife Jennifer Loughery; and Stephen Howard, a relative of the Lougherys and an attorney. Plaintiff also names ten "John Does" as defendants. In his First Amended Complaint, plaintiff asserts claims under 42 U.S.C. § 1983 for violation of the Fourth and Fourteenth Amendments to the United States Constitution[1] against all defendants. The First Amended Complaint also contains negligence claims against the Lougherys and Howard and an assault and battery claim against Howard. Before the court is the motion of the Township and Tartar to dismiss plaintiff's First Amended Complaint pursuant to Rule 12(b)(6) of the Federal Rule of Civil Procedure.


The facts set forth in the First Amended Complaint, taken in the light most favorable to plaintiff, are as follows. Plaintiff alleges that his property, a house located in North Wales, Pennsylvania, was sold at a Sheriff's sale without his knowledge in December 2013. Plaintiff states that he learned of the sale when he arrived at the house in January 2014 to discover a van parked in the driveway and defendants Stephen Howard and William Loughery standing in the garage with a locksmith.

Plaintiff alleges that when he inquired about the presence of the three men in "his house, " Howard informed him: "It's not your house - we bought it at Sheriff's Sale." A confrontation ensued, prompting the locksmith to call the Township police. An unidentified police officer arrived shortly thereafter, [2] followed by Tartar. According to plaintiff, Tartar directed him not to enter the home, and the unidentified officer stated, "[y]ou don't own the home - [defendants] bought it at Sheriff's Sale." Plaintiff claims that he explained that he had received no notice of the sale but that the officers ignored him.

Ultimately, plaintiff was permitted to enter the house for ten minutes to retrieve his personal belongings. The officers told plaintiff he would be contacted at a later date so that he could retrieve the rest of his belongings. According to plaintiff, Tartar added that if he returned to the house before that time he would be charged with trespassing and arrested. Since that time, plaintiff has not been contacted by defendants to retrieve his personal effects, which, he states, are worth approximately $10, 000.

Plaintiff further pleads that Tartar, along with the non-moving defendants, "unlawfully allowed, assisted in, caused, and, in fact, executed a lockout'" even though no action in ejectment was ever filed against plaintiff. He also states:

The conduct of municipal Defendants was part of a custom, policy and/or practice and these customs, policies or practices caused the violations of Plaintiff's rights. Upon information and belief, specifically, Defendants had a policy to enforce unlawful evictions without notice under color [of] State law, including by and through a failure to train, supervise, [or] otherwise abide due process and the law.

The moving defendants seek to dismiss plaintiff's claims against them on the basis that plaintiff has failed to state a claim upon which relief can be granted under § 1983. They argue that plaintiff has failed properly to allege that their actions constituted a constitutional violation and that the First Amended Complaint contains no facts to support plaintiff's "blanket assertion" that the Township maintained a known policy, practice, or custom of enforcing unlawful evictions. See Monell v. Dep't of Social Servs. , 436 U.S. 658 (1978). The moving defendants also urge that Tartar is entitled to qualified immunity from both of plaintiff's claims against him. Finally, they maintain that plaintiff's claims against Tartar must be dismissed to the extent that he is sued in his official capacity because such claims are "duplicative of suing the Township."


When ruling on a Rule 12(b)(6) motion to dismiss, the court must accept as true all factual allegations in the complaint and draw all inferences in the light most favorable to the plaintiff. Phillips v. Cnty. of Allegheny , 515 F.3d 224, 233 (3d Cir. 2008); Umland v. Planco Fin. Servs., Inc. , 542 F.3d 59, 64 (3d Cir. 2008). We must then determine whether the pleading at issue "contain[s] sufficient factual matter, accepted as true, to state a claim for relief that is plausible on its face.'" Ashcroft v. Iqbal , 556 U.S. 662, 678 (2009) (citing Bell Atl. Corp. v. Twombly , 550 U.S. 544, 570 (2007)). A claim must do more than raise a "mere possibility of misconduct.'" Fowler v. UPMC Shadyside , 578 F.3d 203, 210 (3d Cir. 2009) (quoting Iqbal , 556 U.S. at 679). Under this standard, "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Iqbal, 556 U.S. at 578.

The moving defendants seek dismissal of Counts One and Two of plaintiff's First Amended Complaint insofar as these counts raise claims against them. We turn first to Count One which alleges under § 1983 that all defendants violated plaintiff's rights under the Fourth and Fourteenth Amendments. It is plaintiff's position that because he allegedly received no notice of the impending sale of his property, he was subjected to a "unilateral ejectment" in violation of his right to procedural and substantive due process.

In relevant part, § 1983 provides:

Every person whom under color of any statute, ordinance, regulation, custom, or usage, of any State... subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the ...

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