United States District Court, W.D. Pennsylvania
STEPHANIE GREEN on behalf of her minor children, et al. Plaintiff,
LARRY MANROSS, City Manager of Titusville PA, et al., Defendants.
PARADISE BAXTER U.S. DISTRICT JUDGE.
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
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"). ECF No. 24.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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
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).
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.
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.
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
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).
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).
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."
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.
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.
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.
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.
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. Accordingly, the
Court will adjudicate the pending motions on the basis of the
filings currently of record.
STANDARD OF REVIEW
Motions to Dismiss
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
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.
Pro Se Litigations
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
Claims Brought on Behalf of Stephanie Green's
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.
Plaintiffs' Claims Under 42 U.S.C. §1983
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).
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).
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.
Plaintiffs' Fifth Amendment Claims
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
Plaintiffs' Eighth Amendment Claims
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 ...