United States District Court, M.D. Pennsylvania
CHALMERS A. SIMPSON, JR., Plaintiff,
DAUPHIN COUNTY HOUSING AUTHORITY, et al., Defendants.
REPORT AND RECOMMENDATION
F. SAPORITO, JR. UNITED STATES MAGISTRATE JUDGE.
a pro se civil action brought by the plaintiff,
Chalmers A. Simpson, Jr., against several officers and
employees of the Dauphin County Housing Authority (the
“Housing Authority”). In his amended complaint,
Simpson complains of unfair treatment in connection with his
eviction from a public housing unit due to non-payment of
rent. (Doc. 30).
defendants have moved to dismiss the amended complaint for
failure to state a claim, pursuant to Rule 12(b)(6). (Doc.
38). In support of their motion to dismiss, the defendants
originally submitted a legal brief and several documentary
exhibits. (Doc. 40 & attachs.). Because the defendants
presented and relied on materials outside the pleadings, we
entered an order on July 27, 2017, to notify the parties that
we would treat the motion also as a Rule 56 motion for
summary judgment. (Doc. 41). See generally Fed. R.
Civ. P. 12(d). The parties were directed to file amended
briefs, statements of material facts, and any additional
exhibits. (Doc. 41).
August 10, 2017, the defendants filed their amended brief in
support, together with a statement of material facts, several
documentary exhibits, and an affidavit by one of the
defendants. (Doc. 47 & attachs.; Doc. 48 & attach.;
Doc. 49). On September 5, 2017, the plaintiff filed his brief
in opposition to the motion, together with a
counter-statement of material facts and several documentary
exhibits. (Doc. 51; Doc. 52; Doc. 53). On September 19, 2017,
the defendants filed a reply brief, together with an
additional documentary exhibit. (Doc. 54 & attach.).
matter is now ripe for disposition.
entered into a lease with the Housing Authority effective
June 4, 2014. Under this lease, Simpson acquired a possessory
interest in an apartment located at 218 South 2nd Street in
Steelton, Pennsylvania. Based on Simpson's reported
income (which was zero), his initial monthly rent was
calculated as negative-$44. That is, he was
permitted to occupy the premises for free, and he received a
monthly stipend toward utility services of $44.
April 28, 2015, Simpson received a rent change notification
advising him that his monthly rent would increase to $440 on
June 1, 2015. This recalculation of his rent was based on an
annual recertification of his income. On June 5, 2015,
Simpson submitted a written note contesting this new rent
calculation and requesting a grievance hearing. On June 11,
2015, Simpson received a letter advising him that, based on
the information he had provided in certifying his current
income, the rent calculation was correct. In accordance with
the Housing Authority's grievance procedures, the
responding official determined that, without additional
information to justify his dispute, the matter was not
grievable and a hearing would not be scheduled.
same day, June 11, 2015, Simpson received a separate letter
notifying him that his lease would be terminated on or after
June 25, 2015, for nonpayment of rent. This notice advised
Simpson that the lease would be terminated for failure to pay
monthly rent when due, and for violation of a related lease
term providing that rent was due in advance on the first of
the month and that it would be considered delinquent if not
paid by the fifth of the month. The notice advised Simpson
that he was $440 in arrears at the time. It also advised him
of his rights under his lease and the Housing Authority's
grievance procedures, including a right to file a grievance
challenging the eviction notice. Simpson did not file a
grievance after receiving this notice of lease termination.
7, 2015, the Housing Authority filed a landlord/tenant
complaint in state magisterial district court on the ground
that Simpson had failed to pay his rent. Dauphin Cty.
Hous. Auth. v. Simpson, Docket No.
MJ-12202-LT-0000213-2015 (Dauphin Cty. Magis. Dist. Ct.). On
July 15, 2015, following a hearing, the state court entered
judgment in favor of the Housing Authority in the amount of
$880, representing two months of rent in arrears, plus costs.
Id. On July 29, 2015, Simpson appealed that judgment
to the Dauphin County Court of Common Pleas. Dauphin Cty.
Hous. Auth. v. Simpson, Docket No. 2015-CV-5714-DJ
(Dauphin Cty. Ct. Com. Pl.).
August 3, 2015, Simpson received another rent change
notification, this time advising him that his rent had been
reduced to $261, retroactively effective June 1, 2015. As
required by state rules of civil procedure, see Pa.
R.C.P.M.D.J. No. 1008, between July and November 2015,
Simpson paid his monthly rent into an escrow account, from
which it was later disbursed to the Housing Authority
pursuant to a stipulated order entered by the state court in
December 2015. Simpson then ceased paying any rent at all for
on February 11, 2016, the Housing Authority began serving
Simpson with amended notices of lease termination, providing
him with an updated balance of arrears. Between February and
July 2016, the Housing Authority served Simpson with six such
amended notices. By the date of the last notice-July 11,
2016-Simpson was $2, 042.50 in arrears on his rent. Simpson
did not file a grievance after receiving any of these six
additional notices of lease termination.
13, 2016, the Housing Authority filed a complaint in
ejectment seeking Simpson's eviction. On July 14, 2016,
the Housing Authority filed a praecipe to terminate the
supersedeas on the ground that Simpson had failed to pay
monthly rent as required by Rule 1008. Upon confirmation of
Simpson's failure to deposit his monthly rent with the
court, the prothonotary terminated the supersedeas.
27, 2016, the Housing Authority requested an order for
possession, which was issued by the state magisterial
district judge that same day. On July 28, 2016, a state
constable served the order for possession and Simpson was
directed to vacate the premises no later than August 8, 2016.
initiated this federal civil action on August 22, 2016, when
he filed his original pro se complaint. (Doc. 1).
12(b)(6) Dismissal Standard
12(b)(6) of the Federal Rules of Civil Procedure authorizes a
defendant to move to dismiss for “failure to state a
claim upon which relief can be granted.” Fed.R.Civ.P.
12(b)(6). “Under Rule 12(b)(6), a motion to dismiss may
be granted only if, accepting all well-pleaded allegations in
the complaint as true and viewing them in the light most
favorable to the plaintiff, a court finds the plaintiff's
claims lack facial plausibility.” Warren Gen. Hosp.
v. Amgen Inc., 643 F.3d 77, 84 (3d Cir. 2011) (citing
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-56
(2007)). Although the Court must accept the fact allegations
in the complaint as true, it is not compelled to accept
“unsupported conclusions and unwarranted inferences, or
a legal conclusion couched as a factual allegation.”
Morrow v. Balaski, 719 F.3d 160, 165 (3d Cir. 2013)
(quoting Baraka v. McGreevey, 481 F.3d 187, 195 (3d
Rule 12(b)(6), the defendant has the burden of showing that
no claim has been stated. Kehr Packages, Inc. v.
Fidelcor, Inc., 926 F.2d 1406, 1409 (3d Cir. 1991);
Johnsrud v. Carter, 620 F.2d 29, 32-33 (3d Cir.
1980); Holocheck v. Luzerne County Head Start, Inc.,
385 F.Supp.2d 491, 495 (M.D. Pa. 2005). Although a plaintiff
is entitled to notice and an opportunity to respond to a
motion to dismiss, he has no obligation to do so-he may opt
to stand on the pleadings rather than file an opposition. The
Court must nevertheless examine the complaint and determine
whether it states a claim as a matter of law. Stackhouse
v. Mazurkiewicz, 951 F.2d 29, 30 (3d Cir. 1991);
Anchorage Assocs. v. Virgin Islands Bd. of Tax
Review, 922 F.2d 168, 174 (3d Cir. 1990). In deciding
the motion, the Court may consider the facts alleged on the
face of the complaint, as well as “documents
incorporated into the complaint by reference, and matters of
which a court may take judicial notice.” Tellabs,
Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308,
56 Summary Judgment Standard
Rule 56 of the Federal Rules of Civil Procedure, summary
judgment should be granted only if “there is no genuine
dispute as to any material fact and the movant is entitled to
judgment as a matter of law.” Fed.R.Civ.P. 56(a). A
fact is “material” only if it might affect the
outcome of the case. Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248 (1986). A dispute of material
fact is “genuine” only if the evidence “is
such that a reasonable jury could return a verdict for the
non-moving party.” Anderson, 477 U.S. at 248.
In deciding a summary judgment motion, all inferences
“should be drawn in the light most favorable to the
non-moving party, and where the non-moving party's
evidence contradicts the movant's, then the
non-movant's must be taken as true.” Pastore v.
Bell Tel. Co. of Pa., 24 F.3d 508, 512 (3d Cir. 1994).
party seeking summary judgment “bears the initial
responsibility of informing the district court of the basis
for its motion, ” and demonstrating the absence of a
genuine dispute of material fact. Celotex Corp. v.
Catrett, 477 U.S. 317, 323 (1986). If the movant makes
such a showing, the non-movant must set forth specific facts,
supported by the record, demonstrating that “the
evidence presents a sufficient disagreement to require
submission to the jury.” Anderson, 477 U.S. at
evaluating a motion for summary judgment, the Court must
first determine if the moving party has made a prima
facie showing that it is entitled to summary judgment.
See Fed. R. Civ. P. 56(a); Celotex, 477
U.S. at 331. Only once that prima facie showing has
been made does the burden shift to the nonmoving party to
demonstrate the existence of a genuine dispute of material
fact. See Fed. R. Civ. P. 56(a); Celotex,
477 U.S. at 331.
parties may cite to “particular parts of materials in
the record, including depositions, documents, electronically
stored information, affidavits or declarations, stipulations
(including those made for the purposes of the motion only),
admissions, interrogatory answers or other materials.”
Fed.R.Civ.P. 56(c)(1)(A). “An affidavit or declaration
used to support or oppose a motion must be made on personal
knowledge, set out facts that would be admissible in
evidence, and show that the affiant or declarant is competent
to testify on the matters stated.” Fed.R.Civ.P.
56(c)(4). “Although evidence may be considered in a
form which is inadmissible at trial, the
content of the evidence must be capable of admission
at trial.” Bender v. Norfolk S. Corp., 994
F.Supp.2d 593, 599 (M.D. Pa. 2014); see also Pamintuan v.
Nanticoke Mem'l Hosp., 192 F.3d 378, 387 n.13 (3d
Cir. 1999) (noting that it is not proper, on summary
judgment, to consider evidence that is not admissible at
primary claim is that the defendants instituted state court
eviction proceedings against him without first providing him
with a grievance hearing, which Simpson contends violated his
Fourteenth Amendment right to due process, made actionable by
28 U.S.C. § 1983. Simpson further claims that this same
conduct violated his Fourth Amendment right to be free from
unreasonable seizures, his Fifth Amendment right to due
process, his Sixth Amendment rights to counsel,
confrontation, and compulsory process, and his Eighth
Amendment right to be free from cruel and unusual punishment.
He has also asserted related state-law claims for wrongful
eviction, breach of lease, conversion, intentional infliction
of emotional distress, and negligence.
defendants have moved to dismiss all state-law claims on
sovereign immunity grounds, and they have moved to dismiss
all federal civil rights claims on qualified immunity
grounds. Additionally, they argue that the
plaintiff's claims should be dismissed, or the defendants
should be granted summary judgment, on the merits.
Failure to State a Claim
complaint may be dismissed pursuant to Rule 12(b)(6) where
the defendant contends that under the facts alleged he is
entitled to immunity, even though immunity is generally
characterized as an affirmative defense.” Frazier
v. Se. Pa. Transp. Auth., 868 F.Supp. 757, 760 (E.D. Pa.
1994). Here, the defendants contend that all of Simpson's
state-law claims are barred by sovereign immunity.
statute, Pennsylvania law provides that housing authorities
are agencies of the Commonwealth, rather than municipal
entities, for purposes of sovereign immunity. See 35
P.S. § 1550; City of Philadelphia v. Lead Indus.
Ass'n, Inc., 994 F.2d 112, 119 (3d Cir. 1993). The
doctrine of sovereign immunity bars state-law damages claims
against the Commonwealth and its employees, acting within the
scope of their duties, except where specifically waived by
the legislature. See 1 Pa. Cons. Stat. Ann. §
2310; 42 Pa. Cons. Stat. Ann. § 8522 (specifically
waiving sovereign immunity for certain categories of tort
liability not implicated in this case); 62 Pa. Cons. Stat.
Ann. § 1702 (specifically waiving sovereign immunity for
certain types of contract dispute not implicated in this
case). Sovereign immunity applies to state-law claims
advanced against Commonwealth employees in both their
official and their individual capacities. Kintzel v.
Kleeman, 965 F.Supp.2d 601, 606 (M.D. Pa. 2013). Thus,
in this case, sovereign immunity bars Simpson's state-law
claims for wrongful eviction, breach of lease, conversion,
intentional infliction of emotional distress, and negligence.
See Davila v. Kozak, Civil Action No. 13-67J, 2014
WL 904301, at *5 (W.D. Pa. Mar. 5, 2014) (simple negligence
not within enumerated exceptions to sovereign immunity);
Coulter v. E. Stroudsburg Univ., Civil Action No.
3:10-CV-0877, 2010 WL 1780400, at *1 (M.D. Pa. May 4, 2010)
(breach of contract); Gerhart v. Commonwealth, Civil
Action No. 09-cv-1145, 2009 WL 2581715, at *8 n.14 (E.D. Pa.
Aug. 13, 2009) (wrongful eviction); Boone v. Pa. Office
of Vocational Rehabilitation, 373 F.Supp.2d 484, 495
(M.D. Pa. 2005) (intentional infliction of emotional
distress); Drexel v. Horn, 1997 WL 356484, at *7-*8
(E.D. Pa. June 20, 1997) (conversion).
it is recommended that the Simpson's state-law claims for
wrongful eviction, breach of lease, conversion, intentional
infliction of emotional distress, and negligence be dismissed
for failure to state a claim pursuant to Rule 12(b)(6) of the
Federal Rules of Civil Procedure.
claims that his eviction violated his Fourth Amendment right
to be free from unreasonable seizures. The Fourth Amendment
protects “[t]he right of the people to be secure in
their persons, houses, papers, and effects, against
unreasonable searches and seizures.” U.S. Const. amend.
IV. Although the Fourth Amendment extends to protect
homeowners and lessees from unlawful eviction by government
officials, only unreasonable seizures violate the
Constitution. See Soldal v. Cook Cty., Ill., 506
U.S. 56, 71 (1992); Cinea v. Certo, 84 F.3d 117, 124
(3d Cir. 1996); Kvet v. Stammitti, No. 1:12 CV 2178,
2013 WL 179434, at *6-*7 (N.D. Ohio Jan. 6, 2013). Where the
eviction of a public housing tenant is effected pursuant to a
lawful court order, issued after a court hearing had been
afforded to the tenant, it is not an unreasonable seizure of
property under the Fourth Amendment. See Cinea, 84
F.3d at 124; Kvet, 2013 WL 179434, at *6-*7;
Sinclair v. United States, No. 5:06-CV-179, 2007 WL
1106125, at *5 (W.D. Mich. Apr. 5, 2007); see also
Soldal, 506 U.S. at 71; Coleman v. Sellars, 614
Fed. App'x 687, 688-89 (5th Cir. 2015) (per curiam);
Freeman v. City of Dallas, 242 F.3d 642, 653-54 (5th
Cir. 2001) (en banc). Accordingly, it is recommended that the
Simpson's Fourth Amendment unreasonable seizure claim be
dismissed for failure to state a claim pursuant to Rule
12(b)(6) of the Federal Rules of Civil Procedure.
claims that the defendants violated his Fifth Amendment
rights by depriving him of property without due process of
law. But the due process clause of the Fifth Amendment only
applies to the acts of the federal government; it does not
apply to the acts or conduct of state or local government
officials. See Shoemaker v. City of Lock Haven, 906
F.Supp. 230, 237-38 (M.D. Pa. 1995); see also Beahm v.
Burke, 982 F.Supp.2d 451, 458 (E.D. Pa. 2013) (local
government officials). Accordingly, it is recommended that
Simpson's Fifth Amendment due process claim be dismissed
for failure to state a claim pursuant to Rule 12(b)(6) of the
Federal Rules of Civil Procedure.
claims that the defendants deprived him of his Sixth
Amendment rights to the assistance of counsel, to confront
witnesses against him, and to the use of compulsory process
to obtain witnesses in his favor by denying him a grievance
hearing prior to initiating state-court eviction proceedings.
“But the Sixth Amendment does not govern civil
cases.” Turner v. Rogers, 564 U.S. 431, 441
(2011); see also Black v. Monfredo, Civil Action No.
1:14-CV-0788, 2014 WL 2177092, at *4 (M.D. Pa. May 22, 2014).
Here, the grievance hearing at issue was not a criminal
prosecution, nor did Simpson face the prospect of
incarceration as a result of it. See Turner, 564
U.S. at 441; Black, 2014 WL 2177092, at *4.
Accordingly, it is recommended that Simpson's Sixth
Amendment claims be dismissed for failure to state a claim
pursuant to Rule 12(b)(6) of the Federal Rules of Civil
claims that his eviction violated his Eighth Amendment right
to be free from cruel and unusual punishment. But his
eviction was not the result of criminal proceedings against
him, and therefore the Eighth Amendment does not apply to it.
See Crowe v. Clark, 552 Fed. App'x 796, 799
(10th Cir. 2014); Myers v. Long, No. CIV 12-4125,
2013 WL 820788, at *5 (D.S.D. Mar. 5, 2013);
Sinclair, 2007 WL 1106125, at *5; Melton v. U.S.
Gov't, Civ. A. No. 92-2604-LFO, 1993 WL 91343, at *1
(D.D.C. Mar. 18, 1993). Accordingly, it is recommended that
Simpson's Eighth Amendment claim be dismissed for failure
to state a claim pursuant to Rule 12(b)(6) of the Federal
Rules of Civil Procedure.
Leave to Amend
Third Circuit has instructed that if a civil rights complaint
is vulnerable to dismissal for failure to state a claim, the
district court must permit a curative amendment, unless an
amendment would be inequitable or futile. Grayson v.
Mayview State Hosp., 293 F.3d 103, 108 (3d Cir. 2002).
Based on the facts alleged in the complaint and the
plaintiff's litigation history, it is apparent that
amendment in this case would be futile. It is therefore
recommended that the complaint be dismissed without
leave to amend.
claims that the defendants violated his Fourteenth Amendment
due process rights by initiating state-court eviction
proceedings against him without first providing him with a
grievance hearing, as required by federal public housing
regulations. See Bell v. Pleasantville Hous. Auth.,
443 Fed. App'x 731, 735 (3d Cir. 2011) (per curiam)
(complaint alleging ...