United States District Court, M.D. Pennsylvania
MALACHY E. MANNION UNITED STATES DISTRICT JUDGE.
26, 2018, plaintiff Amy Kush filed, pro se, a
complaint alleging violations of her constitutional rights
under 42 U.S.C. §1983, against defendants
Bayview Loan Servicing, the Law Firm of McCabe, Weisberg
& Conway, the Luzerne County Sheriff, the Court of Common
Pleas of Luzerne County, Pennsylvania, and the Wilkes-Barre
General Hospital, regarding a Luzerne County Court mortgage
foreclosure action. (Doc. 1). Plaintiff paid the filing fee.
Plaintiff states that she is the owner of real property
located at 258 Frederick Street, Kingston, Pennsylvania, and
indicates that her property is scheduled for a Sheriff's
sale on August 3, 2018.
styles her action as a “Complaint for Declaratory and
Injunctive Relief and for Damages.” Plaintiff alleges
that the sale of her property is proceeding in violation of
her due process rights since Bayview failed to provide proof
that it is the lawful holder of her loan, proof of the amount
she allegedly owes on it and proof of her alleged default,
despite her demands for such proof. Plaintiff states that
even though she objected to the mortgage foreclosure action,
the Luzerne County Court granted Bayview judgment which has
led to her property being scheduled for the upcoming
Sheriff's sale. Plaintiff also states that she objected
to the mortgage foreclosure action in the Luzerne County
Court and alleged that the action was “based upon her
gender” and her “choice of occupation as
mom.” Thus, plaintiff claims that she is being deprived
of her property without due process and that she is being
“denied the equal protection of the laws” in
violation of the 4th and
14thAmendments. Plaintiff also alleges that after
she notified the defendants that her rights were being
violated by letter dated May 23, 2018, “the sheriff had
her picked up on a mental health warrant [under Pennsylvania
law]” and, she was held against her will for 20 days
and forced to take drugs. As such, plaintiff also raises a
First Amendment retaliation claim against defendants.
seeks the court to declare that the defendants violated her
constitutional rights, and she requests injunctive relief to
prevent the sale of her property, as well as compensatory and
punitive damages. Since plaintiff essentially seeks an
injunction to prevent the August 3, 2018 sale of her
property, this case was referred to the undersigned as an
court has jurisdiction over this case pursuant to 28 U.S.C.
§1331 and 28 U.S.C. §1343(a) because plaintiff
avers violations of her constitutional rights under the
First, Fourth and Fourteenth Amendments of the U.S.
Constitution. Venue is appropriate in this court since the
alleged constitutional violations occurred in this district
and all parties are located here. See 28 U.S.C.
reviewing plaintiff's complaint, the court will deny
plaintiff's request for immediate injunctive relief. The
court will dismiss plaintiff's due process claims with
prejudice for lack of jurisdiction. The court will, however,
allow plaintiff to amend her complaint regarding only her
Fourteenth Amendment equal protection claim and her First
Amendment retaliation claim since her original complaint
fails to state cognizable claims.
state a claim under section 1983, a plaintiff must meet two
threshold requirements: 1) that the alleged misconduct was
committed by a person acting under color of state law; and 2)
that as a result, she was deprived of rights, privileges, or
immunities secured by the Constitution or laws of the United
States. West v. Atkins, 487 U.S. 42 (1988);
Parratt v. Taylor, 451 U.S. 527, 535 (1981),
overruled in part on other grounds, Daniels v.
Williams, 474 U.S. 327, 330-331 (1986). If a defendant
fails to act under color of state law when engaged in the
alleged misconduct, a civil rights claim under section 1983
fails as a matter of jurisdiction, Polk Cnty. v.
Dodson, 454 U.S. 312, 315 (1981), and there is no need
to determine whether a federal right has been violated.
Rendell-Baker v. Kohn, 457 U.S. 830, 838 (1982).
defendant in a civil rights action must have personal
involvement in the alleged wrongs; liability cannot be
predicated solely on the operation of respondeat
superior.” Rode v. Dellarciprete, 845
F.2d 1195, 1207-08 (3d Cir. 1988). See also Sutton v.
Rasheed, 323 F.3d 236, 249 (3d Cir. 2003)(citing
Rode). “Personal involvement can be shown
through allegations of personal direction or of actual
knowledge and acquiescence.” Rode, 845 F.2d at
1207. Accord Robinson v. City of Pittsburgh, 120
F.3d 1286, 1293-96 (3d Cir. 1997); Baker v. Monroe
Twp., 50 F.3d 1186, 1190-91 (3d Cir. 1995).
grant of injunctive relief, including preliminary injunctive
relief, is an extraordinary remedy and it should only be
granted in limited circumstances. Am. Tel. & Tel. Co.
v. Winback & Conserve Program, Inc., 42 F.3d 1421,
1426-27 (3d Cir. 1994) (quoting Frank's GMC Truck
Cent., Inc. v. Gen. Motors Corp., 847 F.2d 100, 102 (3d
Cir. 1988)) (alterations in original). The court's
ultimate decision to deny a preliminary injunction is
discretionary, though legal and factual determinations will
be reviewed according to their normal standard. See
Tenafly Eruv Ass'n, Inc. v. Borough of Tenafly,
309 F.3d 144, 156 (3d Cir. 2002).
order to obtain a preliminary injunction, the moving party
must demonstrate the following:
(1) the likelihood that the plaintiff will prevail on the
merits at final hearing; (2) the extent to which the
plaintiff is being irreparably harmed by the conduct
complained of; (3) the extent to which the defendant will
suffer irreparable harm if the preliminary injunction is
issued; and (4) the public interest.
Id. at 1427 (quoting Merchants & Evans, Inc.
v. Roosevelt Bldg. Prods., 963 F.2d 628, 623-33 (3d Cir.
1992)). More specifically, the third prong requires a
balancing of harms between the plaintiff and the defendant
and a finding that the balance favors the plaintiff's
request for relief. See Issa v. Sch. Dist. of
Lancaster, 847 F.3d 121, 131 (3d Cir. 2017).
injunction should issue only if the plaintiff produces
evidence sufficient to convince the district court that all
four factors favor preliminary relief.” Id.
Moreover, it is only if the first two prongs are satisfied
that the court must inquire into the final two factors.
Tenafly, 309 F.3d at 157. Thus, “a failure to
show a likelihood of success or a failure to demonstrate
irreparable injury must necessarily result in the denial of a
preliminary injunction.” In Re Arthur
Treacher's Franchise Litig.,689 F.2d 1137, 1143 (3d
Cir. 1982). However, if a plaintiff proves the first two
requirements, it will ...