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Retzler v. McCauley

United States District Court, E.D. Pennsylvania

October 18, 2019

WESTLEY RETZLER, Plaintiff,
v.
WILLIAM McCAULEY, III, et al., Defendants. LAURA WARDEN, Plaintiff,
v.
WILLIAM McCAULEY, III, et al., Defendants.

          MEMORANDUM

          Schiller, J.

         In a prior Memorandum and Order, the Court granted pro se Plaintiffs Westley Retzler and Laura Warden leave to proceed in forma pauperis, dismissed their Complaints without prejudice pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) as to certain Defendants, dismissed the Complaints with prejudice as to certain other Defendants, and permitted them to proceed against certain Defendants and file amended complaints. After each filed an Amended Complaint that were identical in all respects, the Court entered another Memorandum and Order in which the two cases were Ordered consolidated for all further purposes under Civil Action Number 19-1800, and the Amended Complaints were dismissed without prejudice for failure to comply with Rule 8. Retzler and Warden were granted leave to file a consolidated Second Amended Complaint (“SAC”), in which they were instructed to follow certain guidelines to ensure that the Court and the defendants they chose to name therein would be able to understand their claims and allegations.[1] The SAC, signed by both Retzler and Warden, is now subject to screening pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii). For the reasons that follow, certain claims and Defendants will be dismissed with prejudice and the balance of the SAC will be served on the remaining Defendants.

         I. FACTS

         The SAC names 49 individuals and governmental entities as Defendants.[2] Retzler and Warden assert civil rights claims, apparently pursuant to 42 U.S.C. § 1983, based on two apparently separate but related incidents as well as a third, unrelated, incident. The first incident, which makes up the bulk of the SAC's repetitive allegations, involves the removal of three motor vehicles and a motor home from their property by Bristol Township employees on April 26 and/or April 27, 2017, apparently in response to nuisance complaints from neighbors. This was allegedly accomplished under the direction of Defendants William McCauley, III, Robert McTaque, Thomas Scott, Scott Swichar, and supervised by Bristol Township Police Chief Robert Coulton, Lieutenant Ralph Johnson, Police Officer Mark Titus and Police Officer Robert Swartzwalter. (SAC, ECF No. 13, at ¶¶ 20-21, 25, 27, 56-61.) Also named on these claims are members of the Bristol Township Council, Bristol Township employees and attorneys. (Id. ¶ 20.)

         The vehicles were allegedly removed by Defendant Raymond Blalock and his company Blalock Automotive. (Id. ¶¶ 22, 38.) During the incident, Police Officer Kevin Jackson allegedly restrained Retzler and Warden from their attempt to interfere with the activities of the Bristol officials. (Id. ¶ 27.) Bristol Township Public Works employees Dave Capponi and Carl Demidio removed the mobile home. (Id. ¶¶ 23, 34-36.) Defendant Ronald Flager, an attorney and solicitor for the Township, allegedly conspired with the Township Deputy Manager Scott Swichar and others to enter onto Retzler's and Warden's property and, when contacted by telephone by other Defendants who were on-site, Flager allegedly told them “I don't care just take it all, those two (Retzler and Warden) don't deserve to have nothing!” (Id. ¶ 25 (quotation marks and punctuation in original).) Retzler and Warden repeatedly allege that the Township Defendants acted to enter their property and seize their vehicles based on the complaints of their neighbors, Dennis Eustace, Cheryl Eustace, Michael Litz, Carol Litz, Kenneth Mehan, Wayne Duke, Elizabeth Duke, Joseph Tillo, Deborah Tillo, Theodore Shire, George Shetzline, Howard McGoldrick, and Helen Kustowski (collectively “the Neighbor Defendants”). (Id. ¶ 26, 53-54, 56.) They also repeatedly allege that the Township officials refused to tell them who ordered the removal of their vehicles and damaged their property during the operation. (Id. ¶¶ 24-39, 50-51, 52.) Defendant Blalock refused to release the vehicles that had been stored at his business. (Id. ¶¶ 40, 64.) Retzler and Warden assert that Randell Flager, Edward Zanie, Adam Flager and Sherry Flager badgered and physically assaulted them. (Id. ¶ 61.)

         The second and perhaps related incident involves a case or cases filed in the Bucks County Court of Common Pleas by Bristol Township against Retzler, and possible, cases filed by Retzler and Warden against many of the same Bristol Township and Bucks County Defendants named in this case. Retzler and Warden assert that the Defendants therein were represented by Randell Flager, Adam Flager and Michael S. Levin, in their capacity as solicitors for the Bucks County Prothonotary.[3] (Id. ¶¶ 28, 42.) The case was assigned to Defendant Judge Jeffrey Trauger, who allegedly allowed the case to remain dormant for five years. (Id.) The case was then calendared for a date that Retzler was in the hospital and allegedly proceeded without him present. (Id. ¶¶ 29-30.) The attorneys allegedly defamed Retzler during the proceeding, and were operating under conflicts of interest. (Id. ¶¶ 31, 47, 49.) Retzler and Warden allege that they eventually learned that the entry onto their property and the removal of the vehicles was ordered by Judge Trauger after the hearing that Retzler could not attend. (Id. ¶ 41.) They also assert that their applications to proceed in forma pauperis in that Court have been delayed by the judges in their cases at the behest of Randell Flager. (Id. ¶¶ 43-46.)

         Finally, in what appears to be an entirely unrelated allegation, Retzler and Warden assert a civil rights violation because payments they made for their sewer bills were not properly credited. (Id. ¶¶ 65-68.)

         II. STANDARD OF REVIEW

         Retzler and Warden were previously granted leave to proceed in forma pauperis. Accordingly, 28 U.S.C. § 1915(e)(2)(B)(ii) requires the Court to dismiss the SAC if it fails to state a claim. Whether a complaint fails to state a claim under § 1915(e)(2)(B)(ii) is governed by the same standard applicable to motions to dismiss under Federal Rule of Civil Procedure 12(b)(6), see Tourscher v. McCullough, 184 F.3d 236, 240 (3d Cir. 1999), which requires the Court to determine whether the complaint contains “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) (quotations omitted). Conclusory allegations do not suffice. Id. As Retzler and Warden are proceeding pro se, the Court construes their allegations liberally. Higgs v. Att'y Gen., 655 F.3d 333, 339 (3d Cir. 2011); but see Argentina v. Gillette, No. 19-1348, 2019 WL 2538020, at *1 (3d Cir. June 20, 2019) (holding that “liberal construction of a pro se amended complaint does not mean accumulating allegations from superseded pleadings”).

         Section 1915(e)(2)(B)(i) requires the Court to dismiss claims if they are frivolous. A claim is frivolous if it “lacks an arguable basis either in law or in fact, ” Neitzke v. Williams, 490 U.S. 319, 325 (1989), and is legally baseless if it is “based on an indisputably meritless legal theory.” Deutsch v. United States, 67 F.3d 1080, 1085 (3d Cir. 1995).

         III. DISCUSSION

         A. Claims Against the Neighbor Defendants

         Retzler and Warden have sued numerous of their neighbors for civil rights violations who allegedly complained to Bristol Township officials about the condition of their property. The vehicle by which one may assert civil rights claims in federal court is 42 U.S.C. § 1983. “To state a claim under § 1983, a plaintiff must allege the violation of a right secured by the Constitution and laws of the United States, and must show that the alleged deprivation was committed by a person acting under color of state law.” West v. Atkins, 487 U.S. 42, 48 (1988). Whether a defendant is acting under color of state law - i.e., whether the defendant is a state actor - depends on whether there is “such a close nexus between the State and the challenged action that seemingly private behavior may be fairly treated as that of the State itself.” Leshko v. Servis, 423 F.3d 337, 339 (3d Cir. 2005) (internal quotations omitted). “To answer that question, [the Third Circuit has] outlined three broad tests generated by Supreme Court jurisprudence to determine whether state action exists: (1) whether the private person has exercised powers that are traditionally the exclusive prerogative of the state; (2) whether the private party has acted with the help of or in concert with state officials; and (3) whether the state has so far insinuated itself into a position of interdependence with the acting party that it must be recognized as a joint participant in the challenged activity.” Kach v. Hose, 589 F.3d 626, 646 (3d Cir. 2009) (internal quotations and alteration omitted).

         There is no plausible assertion that the Neighbor Defendants qualify as state actors for purposes of § 1983. There is no allegation that they exercised a traditional state power, acted in concert with state actors, or were joint participants in the actions of the Bristol Township Defendants. Merely making complaints to municipal officials about an alleged nuisance does not convert a private person into a state actor subject to liability for constitutional violations under § 1983. See e.g., Orkowski v. McCauley, Civ. A. No. 19-2087, 2019 WL 2246781, at *4 (E.D. Pa. May 22, 2019) (holding that neighbors who passed information to Township officials or police that caused them to act were not state actors) (citing Simmer v. Kehler, Civ. A. No. 15-2285, 2015 WL 6737017, at *3 (D.N.J. Nov. 2, 2015) (collecting cases and holding that “[m]erely giving information to police officers is insufficient to convert a private party into a state actor”)); Cvetko v. Derry Twp. Police Dep't, Civ. A. No. 09-1260, 2010 WL 1791140, at *4 (M.D. Pa. May 4, 2010) (“[A] private actor does not proceed under color of state law merely by furnishing the police with information pertaining to a possible public disturbance.”). Allegations that certain neighbors were hostile, boastful bullies, who made rude gestures or watched as the Township employees conducted the removal of the vehicles (see ECF No. 13 at ¶ 26), are likewise insufficient to convert them into state actors.[4] Accordingly, the claims against Dennis Eustace, Cheryl Eustace, Michael Litz, Carol Litz, Kenneth Mehan, Wayne Duke, Elizabeth Duke, Joseph Tillo, Deborah Tillo, Theodore Shire, George Shetzline, Howard McGoldrick, and Helen Kustowski are dismissed pursuant to § 1915(e)(2)(B)(ii). As Retzler and Warden have already been granted two prior opportunities to state plausible claims against the Neighbor Defendants and it appearing that any further attempt would be futile, the dismissal of the Neighbor Defendants will be with prejudice.

         B. Claims Against Judge Trauger

         Judges are entitled to absolute immunity from civil rights claims that are based on acts or omissions taken in their judicial capacity, so long as they do not act in the complete absence of all jurisdiction. See Stump v. Sparkman, 435 U.S. 349, 355-56 (1978); Harvey v. Loftus, 505 Fed.Appx. 87, 90 (3d Cir. 2012) (per curiam); Azubuko v. Royal, 443 F.3d 302, 303-04 (3d Cir. 2006) (per curiam). An act is taken in a judge's judicial capacity if it is “a function normally performed by a judge.” Gallas v. Supreme Ct. of Pa., 211 F.3d 760, 768 (3d Cir. 2000). Moreover, “[g]enerally . . . ‘where a court has some subject matter jurisdiction, there is ...


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