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Simpson v. Dauphin County Housing Authority

United States District Court, M.D. Pennsylvania

November 29, 2017

CHALMERS A. SIMPSON, JR., Plaintiff,
v.
DAUPHIN COUNTY HOUSING AUTHORITY, et al., Defendants.

          CONNER, J.

          REPORT AND RECOMMENDATION

          JOSEPH F. SAPORITO, JR. UNITED STATES MAGISTRATE JUDGE.

         This is 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”).[1] 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).

         The 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).

         On 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.).

         This matter is now ripe for disposition.

         I. Background

         Simpson 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.

         On 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.

         That 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.

         On July 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.).

         On 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 the apartment.

         Beginning 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.

         On July 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.

         On July 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.

         Simpson initiated this federal civil action on August 22, 2016, when he filed his original pro se complaint. (Doc. 1).

         II. Legal Standards

         A. Rule 12(b)(6) Dismissal Standard

         Rule 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 Cir. 2007)).

         Under 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, 322 (2007).

         B. Rule 56 Summary Judgment Standard

         Under 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).

         The 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 251-52.

         In 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.

         Both 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 trial).

         III. Discussion

         Simpson's 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.

         The 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.[2] Additionally, they argue that the plaintiff's claims should be dismissed, or the defendants should be granted summary judgment, on the merits.

         A. Failure to State a Claim

         1. State-Law Claims

         “[A] 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.

         By 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).[3]

         Accordingly, 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.

         2. Fourth Amendment

         Simpson 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.

         3. Fifth Amendment

         Simpson 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.

         4. Sixth Amendment

         Simpson 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 Procedure.

         5. Eighth Amendment

         Simpson 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.

         6. Leave to Amend

         The 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.

         B. Summary Judgment

         Simpson 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 ...


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