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Green v. Manross

United States District Court, W.D. Pennsylvania

September 27, 2019

STEPHANIE GREEN on behalf of her minor children, et al. Plaintiff,
LARRY MANROSS, City Manager of Titusville PA, et al., Defendants.



         Plaintiffs Stephanie Green ("Green") and Michael Restivo ("Restivo") commenced this civil rights action against various city and county officials as the result of a dispute over Plaintiffs' occupancy of a residence located in the City of Titusville, in Crawford County, Pennsylvania. Named as Defendants are: Titusville City Manager Larry Manross ("Manross"); Titusville City Code Enforcer Timothy Lorenz ("Lorenz"); Titusville Police Chief Harold Minch ("Minch"); Titusville police officer Glen Ciccarelli ("Ciccarelli"); and Crawford County Treasurer Christine Krzysiak ("Krzysiak"), all of whom are apparently being sued only in their individual capacities.[1]

         On December 3, 2018, the Court granted the Plaintiffs leave to proceed in forma pauperis and directed that their complaint be filed. Defendant Krzysiak has since filed a motion to dismiss the complaint which is now pending before the Court. ECF No. 21. Also pending before the Court is a motion to dismiss filed by Defendants Manross, Lorenz, and Ciccarelli (referred to collectively, along with Minch, as the "City Defendants").[2] ECF No. 24.

         For the reasons that follow, Krzysiak's motion to dismiss will be granted, and the City Defendants' motion will be granted in part and denied in part.


         The instant dispute arises out of Plaintiffs' occupancy, and eventual purchase, of a residence located on North Martin Street in the City of Titusville. At times relevant to this litigation, the property was owned by Chris and Eva Tharp. ECF No. 4-1 at 3, 14. After the Tharps became delinquent on their tax obligations, the Crawford County Tax Claim Bureau, as trustee for the various taxing bodies, exposed the premises to public sale, pursuant to the provisions of the Real Estate Tax Sale Law, 72 Pa. Stat. Ann. §5860.101, et seq. ECF No. 4-1 at 3. The property was duly advertised but no sale was consummated. Id.

         As of June of 2018, Green, Restivo, and Green's minor children were occupying the residence, with the permission of the Tharps, and undertaking some repairs. Plaintiffs eventually acquired ownership of the property through a private sale agreement with the Tax Claim Bureau that was consummated on September 18, 2018. ECF No. 4-1 at 3-5. This litigation concerns events that transpired during the interim.

         The first relevant incident occurred on Friday, June 22, 2018, when Lorenz allegedly approached Green at the North Main Street property and accused her of "squatting." ECF No. 4, Section III (C)(a). Green advised Lorenz that Restivo had been in contact with Krzysiak regarding Plaintiffs' intent to purchase the property. Id.

         On June 25, 2018, Green and Lorenz exchanged several emails. Initially, Lorenz wrote Green, stating that he had been in contact with county officials, who informed him that the property was "County held" and "would not reach repository until it has made it through Judicial Sale." ECF No. 4-1 at 6. Noting that the judicial sale had not yet occurred, Lorenz concluded, "Therefore, you have no legal standing in the matter and must vacate the premises immediately and discontinue any repairs you are making to the structure. If you fail to do so I will be forced to take legal action against you." Id. Green responded that Restivo had just been to the courthouse the previous Friday. Id. She assumed that "one of us has been misinformed, " because both she and Restivo "[had] been told [that the property was] in repository and we have bid according to procedure." Id. In a follow-up email, Green advised that the Plaintiffs' "paperwork was 'on [Krzysiak's] desk' as of last week." ECF No. 4-1 at 7.

         On the same day that these emails were exchanged, Plaintiffs obtained verbal confirmation from the Tharps that they had "permission" to occupy and repair the premises. ECF No. 4 at 3; ECF No. 4-1 at 14. Plaintiffs claim that they also spoke with Krzysiak, who advised them to provide photographs and estimates of the needed repairs, as that might result in d lower property assessment and thus prompt the County to accept a lower purchase price. ECF No. 4, Section III(c)(h). Plaintiffs state that they faxed photographs of the premises to the Tax Claim Bureau several days later. Id.

         Official records indicate that Restivo's private bid on the North Martin Street property was formally submitted on June 29, 2019. ECF No. 21-3; ECF No. 21-2. The bid form indicates that notice of the bid would be sent to the Tharps as well as the local taxing bodies holding liens on the property. ECF No. 21-3. These entities would then have forty-five (45) days in which to disapprove of the proposed private sale and petition the Crawford County Court of Common Pleas for a hearing on the matter. Id. Assuming that no party objected, the proposed sale would be consummated on September 18, 2018. Id.

         The next relevant communication occurred on July 11, 2018, when Lorenz sent Green the following email:

[Krzysiak] confirmed that you made an offer on the property and that it would take approximately 90 days to complete the sale. As I mentioned before, if you are currently living there, as I'm being told you are, you must vacate the property immediately. Once you have successfully acquired the property I will perform an inspection to identify the repairs that will be needed in order for you to occupy it. You will not be provided with city services (water/sewer) until the repairs have been made and inspected.

ECF No. 4-1 at 7.

         The following day, July 12, Lorenz approached Green and attempted to issue an order to vacate the premises on the grounds that Plaintiffs were trespassing. ECF No. 4, Section III(C)(d). Green disputed that her family was trespassing and recommended that Lorenz speak to Restivo about the situation. She "inform[ed] Lorenz of title of interest" and the fact that the Tharps had permitted Plaintiffs to remain on the premises. Id.; see ECF No. 4-1 at 7. Later that day, Lorenz emailed Plaintiff to inform her that he had spoken with Krzysiak and Minch, and both of them agreed that Plaintiffs lacked "standing" to occupy the premises. ECF No. 4-1 at 8. Lorenz advised

I will be visiting the property tomorrow 7/13 to post an Order to Vacate which will require that you vacate the property immediately and remove your personal belongings. To avoid penalties, including charges for trespass, it is imperative that you seek housing elsewhere.


         Lorenz did, in fact, return to the property on July 13, accompanied by Chief Minch and Officer Ciccarelli. ECF No. 4, Section III(C)(e). Upon their arrival, Minch asked Green to step outside and attempted to "forcibly" remove her from the home. Id. Green refused, stating that she had a right to be there and that she would not leave her children inside. Id. Green again suggested that Lorenz speak to Restivo, as he was the one who had submitted the paperwork and payment for the bid. Id.

         On July 16, 2018, Restivo made contact with Lorenz to discuss the order to vacate. ECF No. 4, Section III(C)(f). Restivo attempted to explain why Plaintiffs' believed they had a right to occupy the premises, but Lorenz insisted that Plaintiffs could not lawfully return until the deed had been transferred to them and was properly recorded. Id. Lorenz further stated that the house posed health hazards and was in need of certain unspecified repairs. Id. Although Restivo invited Lorenz to inspect the repairs that Restivo had made to the home, Lorenz declined to do so and indicated that he would not allow water and sewer services to be restored at that point. Id.

         A similar discussion occurred on July 20, 2018. On that date, Lorenz visited the property to advise Plaintiffs that Police Chief Minch was inquiring about whether Plaintiffs had vacated the premises. ECF No. 4, Section III(C)(g). Restivo pleaded with Lorenz to stay the order to vacate, explaining that Plaintiffs were new to the area and would be rendered homeless if evicted, but Lorenz would not change his position. Id.

         Several days later, Restivo faxed Krzysiak, seeking the County's written consent for Plaintiffs to occupy the residence. ECF No. 4, Section III(C)(h). By return email, Krzysiak confirmed her receipt of Plaintiffs' June 29, 2018 bid and noted that the process for advertising and final approval of the bid "typically takes 90 days from beginning to end if no exception is filed." ECF No. 4-1 at 18. Krzysiak opined that Plaintiffs would not be the lawful owners of the property until they were in possession of the deed, stressing: "I CANNOT give you consent to enter the property. I do not know of any legal standing that allows you to enter this property and make changes to it." Id. (emphasis in the original).

         On July 24, 2018, Lorenz and Minch arrived with another city employee to enforce the order to vacate. ECF No. 4, Section III(C)(i). Plaintiffs claim that they were given "less than 10 minutes to gather belongings." Id. Meanwhile, at Lorenz's direction, a city employee secured the doors to the residence, causing damage to the door in the process. Id. In the course of this incident, Lorenz handed Restivo a hard copy of Krzysiak's previous email and informed him that another party was interested in the property. Id. Plaintiffs contacted Manross later that night, presumably to discuss the circumstances of their eviction, but the specifics of the conversation are not set forth in the Complaint. Id.

         On July 30, 2018, after apparently consulting an attorney, Restivo emailed Lorenz to "inform" Lorenz that he (Restivo) was claiming an "equitable interest of ownership" in the property. ECF No. 4-1 at 8. According to Restivo, this meant that Plaintiffs had "legal standing" to "continue repairs and/or occupancy" without Lorenz's consent. Id. To that end, Restivo sent a second email to Lorenz on August 2, 2018, informing Lorenz that he intended to return to the property the following day to finish repairs to the plumbing and gas lines and complete construction of a rear wall. ECF No. 4-1 at 10. Restivo indicated that he expected any barricades to the entrance to be removed and again invited Lorenz to inspect the repairs. Id. In addition, Restivo requested "an invoice for the time spent... to secure and unsecure . . . entry [to the house]" as well as "the cost of materials for these services by the City." Id.

         Evidently, Lorenz shared this email with Minch, who responded by advising Restivo: "If you enter this home without proper paperwork and water in the home you will be arrested. Unless you can prove you have purchased it and satisfy Mr. [L]orenz you will go to jail." ECF No. 4-1 at 10-11. Lorenz also emailed Restivo, stating:

Police Chief Minch made it quite clear what the consequences would be if you entered the property prior to obtaining ownership. If you plan to enter it, even to do repairs, you will be doing so at your own risk. No. locks or barricades will be removed nor will there be an inspection conducted at this time.

ECF No. 4-1 at 10. According to Plaintiffs, the city police thereafter surveyed the property to ensure its vacancy. ECF No. 4, Section III(C)(j).

         On August 17, 2018, Lorenz was observed by third parties entering the North Martin Street residence with "Mr. and Mrs. Richard Gibbons, " who owned the adjacent property. ECF No. 4, Section III(C)(1); ECF No. 4-1 at 16. As Lorenz and the Gibbonses walked through the house, they discussed the Gibbonses' possible purchase of the home. Id. Upon leaving the house, Lorenz turned the main electrical breaker off, closed and locked all windows, and re-padlocked the door. Id. Plaintiffs claim this "effectively put the family pets out to the curb as well." ECF No. 4, Section III(C)(1).

         On August 20, 2018, Restivo emailed Manross, detailing his grievances relative to the foregoing events. ECF No. 4-1 at 12-13. Manross, however, did not respond to Restivo's email. ECF No. 4, Section III(C)(m). The next day, Plaintiffs emailed Krzysiak "inquiring about Mr. Lorenz's actions" and "apparent attempt to eradicate plaintiffs from the City of Titusville." ECF No. 4, Section III(C)(n). According to Plaintiffs, Krzysiak responded "that the county does not own the property and can not say who may or may not enter the property." Id.

         On August 24, 2018 after once again returning to the North Martin Street property, Plaintiffs were arrested by Minch and "Officer Bean." ECF No. 4, Section III(C)(o). According to the Complaint, Plaintiffs were handcuffed and placed in holding cells at the Titusville Police Department for approximately thirty minutes, after which they were released by Officer Bean "with an apology and explanation of some 'grey areas on both sides.'" Id. Plaintiffs met with Manross later that same day "to assert their right to the property" and "inquire about the actions of Lorenz and Minch, the arrest and the order to vacate as well as the denial of city services of water and sewer." Id. Manross "upheld" the positions of Lorenz and Minch. Id.

         On August 31, 2018, Lorenz was again observed entering the North Martin Street property, this time through the living room window. ECF No. 4, Section III(C)(q); ECF No. 4-1 at 15. The following day, Ciccarelli entered the home and tore down the living room curtains, front porch blinds, and dining room curtains. ECF No. 4, Section III(C)(r). Ciccarelli and Officer Bean then placed yellow caution tape and black duct tape over the front door and blockaded the entrance. Id. Ciccarelli subsequently detained Plaintiffs as they were walking along a public street, "scolded" them for having their personal belongings in the home, and advised that their re-entry into the house would constitute a felony trespass. Id.

         In September of 2018, Officer Bean filed criminal charges against the Plaintiffs for defiant trespass based upon their presence at the subject property on August 24, 2018. ECF No. 4-1 at 19-27. The criminal charges were ultimately withdrawn on October 11, 2018. ECF No. 21-6.

         In the meantime, Plaintiffs commenced this lawsuit on September 21, 2018. ECF No.1. In their complaint, ECF No. 4, Plaintiffs allude to a variety of civil rights violations, referencing 42 U.S.C. §§ 1981, 1983, and 1985, and various provisions of the Fourth, Fifth, Eighth, and Fourteenth Amendments to the U.S. Constitution. Plaintiffs also allege "injury by Municipal and Individual Negligence, " citing the provisions of Pennsylvania's sovereign immunity statutes, 42 Pa. C.S.A. §§8541-8542. The Court therefore assumes that Plaintiffs are trying to assert claims under both federal and state law.

         Krzysiak filed her motion to dismiss on February 20, 2018, and the City Defendants' motion followed on March 1, 2018. ECF Nos. 21, 24. Plaintiffs' responses to these motions were due on March 14, 2019 and March 25, 2019, respectively. ECF Nos. 23 and 26. After Plaintiffs failed to submit any reply, the Court entered an order on July 9, 2019 giving Plaintiffs one final opportunity, on or before July 24, 2019, to submit a response in opposition to the Defendants' motions. ECF No. 30. To date, Plaintiffs have not done so.[3] Accordingly, the Court will adjudicate the pending motions on the basis of the filings currently of record.


         A. Motions to Dismiss

         Defendants' motions are brought under Rule 12(b)(6) of the Federal Rules of Civil Procedure, on the ground that the Complaint fails to state a claim upon which relief can be granted. "When considering a Rule 12(b)(6) motion, we accept all factual allegations as true, construe the complaint in the light most favorable to the plaintiff, and determine whether, under any reasonable reading of the complaint, the plaintiff may be entitled to relief." Wayne Land & Mineral Grp. LLC v. Delaware River Basin Comm'n, 894 F.3d 509, 526-27 (3d Cir. 2018) (internal quotation marks and citations omitted). In order to survive dismissal, "a complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl Corp. v. Twombly, 550 U.S. 544, 570 (2007)). Plausibility means "more than a sheer possibility that a defendant has acted unlawfully." 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." Id. (citing Twombly, 550 U.S. at 556).[4]

         In conducting a Rule 12(b)(6) analysis, courts are limited to considering "only the complaint, exhibits attached to the complaint, matters of public record, as well as undisputedly authentic documents if the complainant's claims are based upon [those] documents." Wayne Land & Mineral Grp., 894 F.3d at 526-27 (internal quotation marks and citations omitted) (alteration in the original). Defendants' exhibits in this case fall squarely within these parameters. The City Defendants have submitted: (i) a copy of the "Proposed Private Sale of Tax Claim Land" agreement pertaining to the North Martin Street residence, ECF No. 25-1, and (ii) copies of the docket sheets from Plaintiffs' criminal trespass case, ECF No. 25-2. Defendant Krzysiak has submitted: (i) a copy of the same "Proposed Private Sale of Tax Claim Land" agreement, ECF No. 21-3; (ii) a copy of a check, dated June 29, 2018, in the amount of $3, 100.00, which was apparently tendered in connection with the "Proposed Private Sale of Tax Claim Land" agreement, ECF No. 21-2; (iii) proof of the Tax Claim Bureau's publicized notice of the private sale, ECF No. 21-4; (iv) a copy of the Tax Claim Bureau Deed, executed by Krzysiak in her capacity as Director of the Bureau, evidencing transfer of the property on September 18, 2018, ECF No. 25-5; and (v) copies of the docket sheets from the Plaintiffs' criminal trespass case, ECF No. 21-6. All of the Defendants' exhibits are matters of public record and/or are undisputedly authentic documents that evidence the transaction upon which Plaintiffs' claims are based. Consequently, the Court will consider these materials in conjunction with its Rule 12(b)(6) analysis without converting the pending motions into Rule 56 motions for summary judgment.

         B. Pro Se Litigations

         Because Plaintiffs are proceeding pro so, the Court "has an obligation to construe the complaint liberally, " Giles v. Kearney, 571 F.3d 318, 322 (3d Cir. 2009), and must "apply the applicable law, irrespective of whether a pro se litigant has mentioned it by name, " Holley v. Dep't of Veteran Affairs, 165 F.3d 244, 248 (3d Cir. 1999). Notwithstanding this more liberal standard, however, "pro se litigants still must allege sufficient facts in their complaints to support a claim" and "must abide by the same rules that apply to all other litigants." Mala v. Crown Bay Marina, Inc., 704 F.3d 239, 245 (3d Cir. 2013) (citations omitted).


         A. Claims Brought on Behalf of Stephanie Green's Children

         Initially, the Court notes that Plaintiff Stephanie Green is attempting to assert claims on behalf of her minor children. It is well-establish law in this circuit that the right to proceed pro se does not give non-lawyer parents the right to represent their children in proceedings before a federal court. See J.R. v. Lehigh Cnty., 534 F.App'x 104, 108 (3d Cir. 2013); Osei -Afriyie v. Medical College of __ Pa. __, 937 F.2d 876, 882 (3d Cir. 1991). Accordingly, the claims that have been asserted on behalf of Ms. Green's minor children will be dismissed.

         B. Plaintiffs' Claims Under 42 U.S.C. §1983

         Plaintiffs assert numerous claims under 42 U.S.C. §1983, which provides a private right of action as against "[e]very person who, 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" of the United States. In order to establish a valid §1983 claim, a plaintiff must show that the defendant, while acting under color of state law, violated one or more of the plaintiffs federal constitutional or statutory rights. See West v. Atkins, 487 U.S. 42, 48 (1988). To be liable, the defendant must have been personally involved in the alleged wrongdoing. See Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1988).

         To hold an official in a supervisory position liable under § 1983, the plaintiff must allege that the official "participated in violating plaintiffs rights, directed others to violate them, or, as the persons in charge, had knowledge of and acquiesced in their subordinates' violations." Parkell v. Danberg, 833 F.3d 313, 330 (3d Cir. 2016) (internal quotation marks and citation omitted). In addition, policymaking officials may be liable "if it is shown that such defendants, with deliberate indifference to the consequences, established and maintained a policy, practice or custom which directly caused [the] constitutional harm." A.M. ex rel J.M.K. v. Luzerne Cty. Juvenile Det. Ctr., 372 F.3d 572, 586 (3d Cir. 2004) (internal quotation marks and citation omitted; alteration in the original).

         In this case, the Plaintiffs have adequately alleged each Defendant's status as a person acting under color of state law. Accordingly, the Court will focus on whether or not Plaintiffs have pleaded a violation of their federally secured rights. As part of this inquiry, the Court must consider whether Plaintiff has alleged facts sufficient to establish each Defendant's personal involvement in the alleged wrongdoing. Rode, 845 F.2d at 1207.

         1. Plaintiffs' Fifth Amendment Claims

         In their Complaint, Plaintiffs appear to assert claims based on the "5th Amendment Due Process Clause." ECF No. 4, Section II. "[T]he due process clause under the Fifth Amendment only protects against federal governmental action and does not limit the actions of state officials." Caldwell v. Beard, 324 F.App'x 186, 189 (3d Cir. 2009). Because none of the Defendants named herein are federal actors, Plaintiffs' claims based upon Fifth Amendment violations fail as a matter of law and will be dismissed.

         2. Plaintiffs' Eighth Amendment Claims

         Plaintiffs also purport to state Eighth Amendment claims pertaining to "Equal Protection of laws" and "Cruel Unusual Punishment." ECF No. 4, Section II. Plaintiffs' right to equal protection of the laws is afforded by the Fourteenth Amendment, not the Eighth Amendment. Accordingly, that claim is addressed ...

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