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Retzler v. Phillips

United States District Court, E.D. Pennsylvania

December 10, 2019

WESTLEY RETZLER, et al., Plaintiffs,
FRANCIS X. PHILLIPS, et al., Defendants.


          BERLE M. SCHILLER, J.

         In a prior Memorandum and Order entered in Civil Action 19-1800 on October 18, 2019, the Court directed the Clerk of Court to open a new civil action naming Westley Retzler and Laura Warden as the Plaintiffs and Francis X. Phillips as the Defendant to permit Retzler and Warden to proceed in their civil rights claim related to the allegedly inaccurate crediting of their sewer bill payments by Phillips, who was identified as the Bristol Township Finance Director. Retzler and Warden were granted leave to file an amended complaint in the newly opened matter if they chose to do so. However, Retzler and Warden were placed on notice that any new pleading must be limited to claims involving sewer bills, not include any claim previously dismissed or permitted to be served in Civil Action 19-1800, and follow the guidelines the Court previously set forth for Retzler and Warden to use in drafting amended pleadings.

         Retzler and Warden filed an amended complaint on November 15, 2019.[1] They seek to add as Defendants Bristol Township, the Bristol Township Sewer Department, elected and appointed officials of Bristol Township, and several lawyers.[2] Similar to other pleadings they have filed, Retzler and Warden make broad, conclusory allegations containing legalisms but few factual averments. Also, in many instances, they do not differentiate among Defendants; they do not specifically identify which Defendant was involved in many of the acts they allege, other than to refer to them by the number they assign to each Defendant in a list they have created; and they make allegations about activities outside of the limitations period applicable to this case. For the following reasons, the amended complaint is dismissed in part pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii).


         Eliminating conclusory statements and legalisms, [3] Retzler's and Warden's allegations all concern the failure by certain Bristol Township officials to properly credit payments they claim they made for their sewer bill. (ECF No. 4 at 10.) They assert that their civil rights were violated due to the improper crediting, which caused them to incur late fees, penalties, and interest, and suffer emotional distress. (Id.) They further allege that they filed a federal bankruptcy petition[4] in December 2017, but Defendants Bristol Township, Francis K. Phillips, William McCauley III, Portnoff Law Associates, and attorneys Robert Daday, Adam Flager and Randall C. Flager, ignored their petition and attempted to “maximize the outstanding billing attorney fees and late fees. . .” (Id. at 11, 15.) They allege that payments made on September 16, 2016, January 3, 2017, January 5, 2017, March 29, 2018, June 29, 2018, September 28, 2018, December 26, 2018, March 29, 2019, June 28, 2019, and September 30, 2019 were not properly credited. (Id. at 12-15.)

         Retzler and Warden assert claims against all Defendants - other than two John Does - of extortion (id. at 16), theft by deception (id. at 17), and conspiracy to commit extortion and theft (id. at 17-18). They allege the Defendant members of the Bristol Township Council followed the advice of their solicitor, Defendant Randall Flager, and directed Defendant Portnoff Law Associates and Attorney Robert P. Daday to commence a sheriff's sale in December 2017 of the Retzler/Warden property, even though a federal bankruptcy petition had been filed around that same time. (Id. at 18.) However, they also allege that a Bucks County judge, following a motion filed by the above attorneys, issued orders postponing the sheriff's sale, and entered an additional order on October 11, 2019 postponing the sale through February 14, 2020. (Id. at 19-20.)


         Because the Court has granted Retzler and Warden leave to proceed in forma pauperis, 28 U.S.C. § 1915(e)(2)(B) requires the Court to screen the TAC and dismiss it if, among other things, it fails to state claims upon which relief may be granted. 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.

         Moreover, a complaint may be dismissed for failing to comply with Federal Rule of Civil Procedure 8. Garrett v. Wexford Health, 938 F.3d 69, 91 (3d Cir. 2019). To conform to Rule 8, a pleading must contain a short and plain statement showing that the plaintiff is entitled to relief. See Travaline v. U.S. Supreme Court, 424 Fed.Appx. 78, 79 (3d Cir. 2011). The Third Circuit recently explained that in determining whether a pleading meets Rule 8's “plain” statement requirement, the Court should “ask whether, liberally construed, a pleading ‘identifies discrete defendants and the actions taken by these defendants' in regard to the plaintiff's claims.” Garrett, 938 F.3d at 93 (citation omitted). A pleading may still satisfy the “plain” statement requirement “even if it is vague, repetitious, or contains extraneous information” and “even if it does not include every name, date, and location of the incidents at issue.” Id. at 93-94. The important consideration for the Court is whether, “a pro se complaint's language . . . presents cognizable legal claims to which a defendant can respond on the merits.” Id. at 94.

         However, “a pleading that is so ‘vague or ambiguous' that a defendant cannot reasonably be expected to respond to it will not satisfy Rule 8.” Id. at 93; see also Fabian v. St. Mary's Med. Ctr., Civ. A. No. 16-4741, 2017 WL 3494219, at *3 (E.D. Pa. Aug. 11, 2017) (“Federal Rule of Civil Procedure 8 requires that pleadings provide enough information to put a defendant on sufficient notice to prepare their defense and also ensure that the Court is sufficiently informed to determine the issue.”) (quotations omitted). Dismissals under Rule 8 are “‘reserved for those cases in which the complaint so confused, ambiguous, vague, or otherwise unintelligible that its true substance, if any, is well disguised.'” Garrett, 938 F.3d at 94 (quoting Salahuddin v. Cuomo, 861 F.2d 40, 42 (2d Cir. 1988)).


         The vehicle by which federal constitutional claims may be brought in federal court is Section 1983 of Title 42 of the United States Code, that provides in part:

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, 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, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.

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 ...

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