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Garanin v. City of Scranton

United States District Court, M.D. Pennsylvania

December 17, 2019

VSEVOLOD GARANIN, et al. Plaintiffs,
CITY OF SCRANTON, et al. Defendants.



         I. Statement of Facts and of the Case

         This is the second civil action before us filed by Vsevolod Garanin and his associated entities against the City of Scranton and others. The defendants have now moved to dismiss this lawsuit, or in the alternative, to combine it with Garanin's initial lawsuit, Civ. No. 3:14-cv-2129 (“Garanin I”), also pending before this court, for ease of litigation. After review of these motions, we will grant them both in part. The defendants' motion to dismiss this case shall be granted as to Counts IV and VII, denied as to Counts II, III, and VI, and granted in part and denied in part for Counts I, V, and VIII. Likewise, the defendants' alternative motion to consolidate Garanin's two cases shall be granted in part at this time solely for purposes of global settlement discussions concerning both of Garanin's lawsuits pending before this court, and we will defer a decision regarding further consolidation of the cases for trial pending the outcome of any mediation efforts.

         In the eight-count complaint presently before us, Garanin sets forth several claims under 42 U.S.C. § 1983 for violations of procedural and substantive due process rights, equal protection, the First Amendment, and protections against unreasonable searches and seizures. In addition, the complaint sets forth claims for Monell liability, malicious prosecution, and tortious interference with existing and prospective business and contractual relationships. These allegations are based on the following facts which are derived from the plaintiffs' complaint:

Plaintiff Garanin is a Scranton-area businessman, owning a controlling share in Garanin Properties LLC, the parent company holding Auric Investment Holdings LLC (“Auric”), Ferndrive LLC (“Ferndrive”), and Rock Property Holdings LLC (“Rock Property”), the co-plaintiffs in this case. (Doc. 1, ¶¶ 1-5). These wholly-owned subsidiaries own the properties which give rise to Garanin's disputes in this second complaint, including 300-302 William Street, 126-128 School Street, 614 Willow Street, and 1208-1210 Philo Street. (Id., ¶¶ 3-5). The defendants in this case are William Courtright, the former mayor of the City of Scranton; Patrick Hinton, the former Director of the City of Scranton's Department of Licensing, Inspections, and Permits; Lori Uher, the Officer of Rental Registration for the City's Department of Licensing, Inspections, and Permits; Tamilyn Carmona, a Code Enforcement Officer for the City's Department of Licensing, Inspections, and Permits; and the City of Scranton. All defendants worked for the City during all pertinent portions of the plaintiffs' complaint.

         According to the complaint, the defendants in this case condemned the William Street property, held by Auric, for fear of a roof collapse despite the fact that Auric had contracted to repair and replace the roof on the building pursuant to a City-issued construction permit for same and had removed tenants from the top floor of the two-story building. (Id., ¶¶ 20, 22, 24). Garanin, on behalf of Auric, appealed this condemnation to the City of Scranton Housing Appeals Board. (Id., ¶ 29). After its condemnation, and during the pendency of Auric's appeal, the City also allegedly instructed PPL to remove the four electric meters from the building since it was not being occupied.[1] (Id., ¶ 30). The Board held a hearing on the condemnation on November 29, 2018. (Id., ¶ 31). Thereafter, on December 4, 2018, the Board issued a decision upholding the City's condemnation of the property. (Id., ¶ 32). Garanin promptly appealed this determination to the Lackawanna County Court of Common Pleas; this appeal remains pending as of the date of the filing of this complaint. (Id., ¶¶ 33-34). In the interim, the City fined Auric multiple times for prohibited occupancy and quality of life citations since there was still at least one tenant residing in the building, despite the ongoing appeals process, and the City's alleged refusal to remove the tenant from the building.[2] (Id., ¶¶ 40-44). Garanin's attempts to remedy the situation, through Auric, were allegedly frustrated by the City's continual roadblocks, thus delaying and prolonging the reopening of the building. (Id., ¶¶ 45-57). Similarly, Ferndrive's School Street property remained condemned by the City for an extended period of time, despite Garanin's efforts and compliance with all requirements and the defendants' requests. (Id., ¶¶ 58-62).

         With respect to Ferndrive's Willow Street property, the City of Scranton's Department of Licensing, Inspections, and Permits allegedly received complaints regarding the heating in the first-floor units. (Id., ¶ 63). Without conducting an inspection to confirm the tenant complaints or providing notice or a hearing to Ferndrive or Garanin, the defendants closed the property due to “unhealthy and hazardous conditions.” (Id., ¶¶ 64-65, 71). After a delayed waiting period for a hearing before the City of Scranton Housing Appeals Board to contest the closure, the Board decided to uphold the City's determination as to the property. (Id., ¶¶ 72-76). On June 12, 2019, Ferndrive, via Garanin, filed an appeal of this decision with the Lackawanna County Court of Common Pleas, which remained pending as of the time the plaintiffs' complaint was filed. (Id., ¶¶ 77-78).

         Garanin, through Rock Property, lastly alleges that the Philo Street property faced similar issues from the defendant. Specifically, on February 2, 2019, Defendant Carmona condemned a unit in this property after UGI “red tagged the furnace” therein without notice or a hearing provided to either Garanin or Rock Property.[3] (Id., ¶¶ 79, 88). Defendant Carmona did this despite the fact that a city-licensed mechanical and plumbing contractor was allegedly en route to the building on the same day. (Id., ¶¶ 86-87). Thereafter, Garanin, on behalf of Rock Property, filed an appeal with the Board. (Id., ¶ 93). While this appeal was pending, Garanin attempted to amicably resolve the problems necessary to reopen this unit by scheduling an inspection with the City. Due to close deadlines with the Board of Appeals hearing, Garanin requested a rescheduling of this inspection from Defendant Hinton, who allegedly refused to allow a rescheduling after Garanin turned down a settlement offer from the City. (Id., ¶¶ 116-24). Garanin was further stymied when, after another delayed hearing before the Board, allegedly due to the defendants' actions, the Board decided to uphold Defendant Carmona's decision to condemn the Philo Street property unit. (Id., ¶¶ 95-97). Rock Property appealed this decision to the Lackawanna County Court of Common Pleas on June 13, 2019, which remained pending at the time the plaintiffs filed their complaint in this case. (Id., ¶ 98).

         While the condemnation of this unit in the property was making its way through the appeals process, Rock Property received notice that the entire Philo Street property was out of compliance with the city's rental ordinance and that a rental registration payment was required. (Id., ¶¶ 100-01). Despite Rock Property allegedly submitting this payment and confirming its receipt, Defendant Uher closed the entire property on April 10, 2019 without notice to Rock Property or Garanin on the grounds that the property still had not been registered. (Id., ¶¶ 102-04, 108). A series of appeals followed which were largely reminiscent of the other plaintiffs' experiences with the Board of Appeals; the Board opted to uphold the City's decision on May 16, 2019, and an appeal was pending with the Lackawanna County Court of Common Pleas as of the time this complaint was filed. (Id., ¶¶ 113-14).

         Lastly, Garanin generally alleges that he has been the subject of disparate treatment from the defendants. (See id., ¶ 132). As support for this assertion, Garanin claims that:

Specifically, on June 18, 2019 a permit was denied for the 1930 Bristol Ct. property as owned by the Ethel M. Martinez due to non-payment of rental registration fees. The property was not closed (Exhibit 40).
Once again, on June 19, 2019 a permit was denied for the 722 N. Main Avenue property as owned by the Jewish Discovery Center Inc. due to non-payment of rental registration fees, amongst other reasons. The property was not closed (Exhibit 41).
On the contrary the GARANIN controlled WILLOW STREET PORPERTY [sic] and the PHILO STREET PORPERTY [sic] were closed.

(Id., ¶¶ 133-35) (emphasis in original).

         The defendants respond to these factual averments with a motion to dismiss, asserting privileges of qualified immunity and claiming that the plaintiffs have failed to allege sufficient facts to include all named defendants in each count of the complaint. The defendants alternatively move to consolidate the 2014 Garanin I case and the present dispute for ease of litigation.

         By way of background, Garanin has already filed a civil lawsuit with this court in 2014 containing a similar factual landscape to the present complaint. Civ. No. 3:14-cv-2129. This 2014 matter is still pending before this court, the case having been stayed pending resolution of criminal charges against Garanin in state court. Garanin I is now set to proceed, fact discovery having concluded, and dispositive motions having been filed. In fact, we have entered a case management order in this case, scheduling it for trial in the Summer of 2020, and directing the parties to notify us if they wish to pursue mediation by January 31, 2020. Thus, the 2014 matter and the case at hand present themselves in distinctly different procedural postures, the instant case having reached only the motion to dismiss stage. Given these differences in procedural posture, despite the similar factual landscape, we find it appropriate to grant the defendants' alternative motion to consolidate these cases, in part, for purposes of settlement discussions only at this time.

         II. Discussion

         A. Motion to Dismiss-Standard of Review

         A motion to dismiss tests the legal sufficiency of a complaint. It is proper for the court to dismiss a complaint in accordance with Rule 12(b)(6) of the Federal Rules of Civil Procedure only if the complaint fails to state a claim upon which relief can be granted. Fed.R.Civ.P. 12(b)(6). With respect to this benchmark standard for legal sufficiency of a complaint, the United States Court of Appeals for the Third Circuit has aptly noted the evolving standards governing pleading practice in federal court, stating that:

Standards of pleading have been in the forefront of jurisprudence in recent years. Beginning with the Supreme Court's opinion in Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) continuing with our opinion in Phillips [v. County of Allegheny, 515 F.3d 224, 230 (3d Cir. 2008)] and culminating recently with the Supreme Court's decision in Ashcroft v. Iqbal, BU.S.B, 129 S.Ct. 1937 (2009), pleading standards have seemingly shifted from simple notice pleading to a more heightened form of pleading, requiring a plaintiff to plead more than the possibility of relief to survive a motion to dismiss.

Fowler v. UPMC Shadyside, 578 F.3d 203, 209-10 (3d Cir. 2009).

         In considering whether a complaint fails to state a claim upon which relief may be granted, the court must accept as true all allegations in the complaint and all reasonable inferences that can be drawn therefrom are to be construed in the light most favorable to the plaintiff. Jordan v. Fox Rothschild, O'Brien & Frankel, Inc., 20 F.3d 1250, 1261 (3d Cir. 1994). However, a court “need not credit a complaint's bald assertions or legal conclusions when deciding a motion to dismiss.” Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 906 (3d Cir. 1997). Additionally, a court need not “assume that a . . . plaintiff can prove facts that the . . . plaintiff has not alleged.” Associated Gen. Contractors of Cal. v. California State Council of Carpenters, 459 U.S. 519, 526 (1983). As the Supreme Court held in Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), in order to state a valid cause of action, a plaintiff must provide some factual grounds for relief which “requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of actions will not do.” Id. at 555. “Factual allegations must be enough to raise a right to relief above the speculative level.” Id.

         In keeping with the principles of Twombly, the Supreme Court has underscored that a trial court must assess whether a complaint states facts upon which relief can be granted when ruling on a motion to dismiss. In Ashcroft v. Iqbal, 556 U.S. 662 (2009), the Supreme Court held that, when considering a motion to dismiss, a court should “begin by identifying pleadings that, because they are no more than conclusions, are not entitled to the assumption of truth.” Id. at 679. According to the Supreme Court, “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Id. at 678. Rather, in conducting a review of the adequacy of a complaint, the Supreme Court has advised trial courts that they must:

[B]egin by identifying pleadings that because they are no more than conclusions are not entitled to the assumption of truth. While legal conclusions can provide the framework of a complaint, they must be supported by factual allegations. When there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief.

Id. at 679.

         Thus, following Twombly and Iqbal, a well-pleaded complaint must contain more than mere legal labels and conclusions; it must recite factual allegations sufficient to raise the plaintiff's claimed right to relief beyond the level of mere speculation. As the United States Court of Appeals for the Third Circuit has stated:

[A]fter Iqbal, when presented with a motion to dismiss for failure to state a claim, district courts should conduct a two-part analysis. First, the factual and legal elements of a claim should be separated. The District Court must accept all of the complaint's well-pleaded facts as true, but may disregard any legal conclusions. Second, a District Court must then determine whether the facts alleged in the complaint are sufficient to show that the plaintiff has a “plausible claim for relief.” In other words, a complaint must do more than allege the plaintiff's entitlement to relief. A complaint has to “show” such an entitlement with its facts.

Fowler, 578 F.3d at 210-11.

         As the court of appeals has observed: “The Supreme Court in Twombly set forth the ‘plausibility' standard for overcoming a motion to dismiss and refined this approach in Iqbal. The plausibility standard requires the complaint to allege ‘enough facts to state a claim to relief that is plausible on its face.' Twombly, 550 U.S. at 570, 127 S.Ct. 1955. A complaint satisfies the plausibility standard when the factual pleadings ‘allow[ ] the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.' Iqbal, 129 S.Ct. at 1949 (citing Twombly, 550 U.S. at 556, 127 S.Ct. 1955). This standard requires showing ‘more than a sheer possibility that a defendant has acted unlawfully.' Id. A complaint which pleads facts ‘merely consistent with' a defendant's liability, [ ] ‘stops short of the line between possibility and plausibility of “entitlement of relief.”' ” Burtch v. Milberg Factors, Inc., 662 F.3d 212, 220-21 (3d Cir. 2011) cert. denied, 132 S.Ct. 1861, 182 L.Ed.2d 644 (U.S. 2012).

         In practice, consideration of the legal sufficiency of a complaint entails a three-step analysis: “First, the court must ‘tak[e] note of the elements a plaintiff must plead to state a claim.' Iqbal, 129 S.Ct. at 1947. Second, the court should identify allegations that, ‘because they are no more than conclusions, are not entitled to the assumption of truth.' Id. at 1950. Finally, ‘where there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement for relief.' Id.Santiago v. Warminster Twp., 629 F.3d 121, 130 (3d Cir. 2010).

         In considering a motion to dismiss, the court generally relies on the complaint, attached exhibits, and matters of public record. Sands v. McCormick, 502 F.3d 263, 268 (3d Cir. 2007). The court may also consider “undisputedly authentic document[s] that a defendant attached as an exhibit to a motion to dismiss if the plaintiff's claims are based on the [attached] documents.” Pension Benefit Guar. Corp. v. White Consol. Indus., 998 F.2d 1192, 1196 (3d Cir. 1993). Moreover, “documents whose contents are alleged in the complaint and whose authenticity no party questions, but which are not physically attached to the pleading, may be considered.” Pryor v. Nat'l Collegiate Athletic Ass'n, 288 F.3d 548, 560 (3d Cir. 2002); see also, U.S. Express Lines, Ltd. v. Higgins, 281 F.3d382, 388 (3d Cir. 2002) (holding that “[a]lthough a district court may not consider matters extraneous to the pleadings, a document integral to or explicitly relied upon in the complaint may be considered without converting the motion to dismiss in one for summary judgment”). However, the court may not rely on other parts of the record in determining a motion to dismiss, or when determining whether a proposed amended complaint is futile because it fails to state a claim upon which relief may be granted. Jordan v. Fox, Rothschild, O'Brien & Frankel, 20 F.3d 1250, 1261 (3d Cir. 1994).

         B. Qualified Immunity

         Throughout their motion to dismiss, the defendants raise several challenges to the plaintiffs' complaint, including the allegation that they should be discharged from this case on qualified immunity grounds. Recognizing that the Supreme Court has voiced a preference for resolving questions of immunity at the earliest stage of trial, Hunter v. Bryant, 502 U.S. 224, 227, 112 S.Ct. 534, 116 L.Ed.2d 589 (1991), but finding that the questions before us involve immutably fact-bound determinations, among other reasons as discussed below, we will deny these portions of the defendants' motion to dismiss without prejudice for the defendants to raise again upon a more fulsome record.

         Initially, it is well-settled that:

“[T]he qualified-immunity defense shields government agents from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Behrens v. Pelletier, 516 U.S. 299, 305, 116 S.Ct. 834, 133 L.Ed.2d 773 (1996) (internal quotation marks, brackets, and citations omitted). An essential attribute of qualified immunity is the “entitlement not to stand trial or face the other burdens of litigation, conditioned on the resolution of the essentially legal question whether the conduct of which the plaintiff complains violated clearly established law.” Mitchell [v. Forsyth], 472 U.S. [511, 526, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985)]. The immunity is intended to protect officials from the potential consequences of suit, including distraction from official duties, inhibition of discretionary action, and deterrence of able people from public service. Id. “[E]ven such pretrial matters as discovery are to be avoided if possible, as ‘[i]nquiries of this kind can be peculiarly disruptive of effective government.' ” Id. (quoting Harlow v. Fitzgerald, 457 U.S. 800, 817, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982)).

Thomas v. Independence Twp., 463 F.3d 285, 291 (3d Cir. 2006).

         Because qualified immunity bestows immunity from suit, the Supreme Court “repeatedly ha[s] stressed the importance of resolving immunity questions at the earliest possible stage in litigation.” Hunter v. Bryant, 502 U.S. 224, 227, 112 S.Ct. 534, 116 L.Ed.2d 589 (1991). Yet, while questions of qualified immunity should be resolved at the earliest possible stage of the litigation, it is also evident that some qualified immunity questions are fact-specific and require consideration of matters beyond the pleadings. Indeed, in many instances, “crucial to the resolution of [the] assertion of qualified immunity is a careful examination of the record . . . to establish . . . a detailed factual description of the actions of each individual defendant (viewed in a light most favorable to the plaintiff).” Grant v. City of Pittsburgh, 98 F.3d 116, 122 (3d Cir. 1996). Given the highly fact-specific nature of certain qualified immunity inquiries, some qualified immunity claims may not be readily amenable to resolution at the outset of a case on a motion to dismiss.

         In such instances:

When presented with a complaint that does not lend itself to an early resolution of the qualified immunity issue, a district court has several options. First, a district court may order the plaintiff to reply to the defendant's answer pleading qualified immunity. Crawford-El [v. Britton], 523 U.S. 574, 598, 118 S.Ct. 1584, 140 L.Ed.2d 759 (1998)]. Second, a district court may grant a defense motion for a more definite statement under Rule 12(e) with respect to the conduct of which the plaintiff complains. Id. The district court should avail itself of these options before addressing the immunity question, which sometimes requires complicated analysis of legal issues. Id. If the plaintiff's action survives these hurdles, the plaintiff ordinarily will be entitled to some discovery, but the district court may limit the timing, sequence, frequency, and extent of that discovery under Rule 26. Id. at 598-99. Beyond these procedural tools, summary judgment remains a useful tool for precluding insubstantial claims from proceeding to trial. Id. at 600.

Thomas v. Independence Twp., 463 F.3d at 301.

         In our view, two of these options, which lie in our discretion, have only limited utility as a means for clarifying this complaint, which is challenged on qualified immunity grounds. Oftentimes directing a litigant to endeavor to respond to a qualified immunity claim by either requiring the plaintiff to: (1) reply to the defendant's answer pleading qualified immunity; or (2) granting a defense motion for a more definite statement under Rule 12(e) with respect to whether the defendants are entitled to qualified immunity have limited usefulness in addressing this defense. Therefore, in many instances, the most fair and efficient means of addressing qualified immunity issues which are not susceptible to quick resolution on a motion to dismiss may be the third option endorsed by the courts: a prompt, and properly documented, summary judgment motion.

         In our view, these principles guide the course which we choose to follow in this case. In this instance, both the plaintiffs' complaint, and the defendants' motion to dismiss on qualified immunity grounds endeavor to characterize the actions and motives of certain named defendants in relation to the plaintiffs' properties. On this score, the parties' positions reflect a stark and irreconcilable conflict. Garanin views these actions as bad faith, discriminatory and retaliatory actions. The defendants insist that their conduct constituted a prudent response to public health and safety concerns. On the pleadings alone, these disputes regarding motivation cannot be addressed. These accounts present disparate descriptions of the events at issue in the complaint and rely upon facts and evidence outside of the pleadings which we are not in a position to weigh. Thus, we are invited to make a fact-specific determination of qualified immunity in the procedural setting of a motion to dismiss where we are enjoined from looking beyond the pleadings. We will therefore deny the defendants' motion to dismiss on qualified immunity grounds as to all counts in the plaintiffs' complaint without prejudice, subject to a timely motion for summary judgment at a later stage in the proceedings. We will also address other, more pointed issues of qualified immunity raised by the defendants as to the individual counts in the plaintiffs' complaint as they arise below, bearing in mind the fact-bound nature of a qualified immunity defense.

         B. The Defendants' Motion to Dismiss Count I of the Plaintiffs' Complaint for a Violation of the Plaintiffs' Procedural Due Process Rights is Granted in Part and Denied in Part Without Prejudice.

         In Count I of their complaint, the plaintiffs have alleged that the defendants violated their rights to procedural due process guaranteed by the Fourteenth Amendment by condemning properties or units within the plaintiffs' properties without affording them either notice or a pre-deprivation hearing. The plaintiffs likewise claim that they were issued citations for prohibited occupancy without notice or a hearing. The defendants counter, primarily, that they are entitled to qualified immunity on these procedural due process claims because pre-deprivation notice is not required in cases involving exigent circumstances where a post-deprivation remedy is available to an aggrieved property owner. The defendants further maintain that the record establishes that the prohibited occupancy citations were warranted since there were clearly individuals residing in the condemned properties. Lastly, the defendants assert that the plaintiffs' complaint is over-broad in alleging that all named defendants are liable for conduct which, in the complaint, only mentions some of the named defendants. Thus, these extraneous defendants should be removed from liability for this count in this complaint. We address these claims in the order raised.

         It has long been settled law that where a state can feasibly provide a pre-deprivation hearing before taking property, it generally must do so. See, e.g., Fuentes v. Shevin, 407 U.S. 67, 80-84, 92 S.Ct. 1983, 32 L.Ed.2d 556 (1972) (hearing required before issuance of a writ allowing repossession of property). It is also true that in some cases involving exigent circumstances requiring officials to act quickly, a pre-deprivation hearing may be deemed unnecessary and in such cases the existence of a post-deprivation remedy may be adequate to protect a property owner's due process interests. See Logan v. Zimmerman Brush Co., 455 U.S. 422, 436, 102 S.Ct. 1148, 71 L.Ed.2d 265 (1982) (“ ‘[T]he necessity of quick action by the State or the impracticality of providing any predeprivation process' ” may mean that a post-deprivation remedy is constitutionally adequate) (quoting Parratt v. Taylor, 451 U.S. 527, 539, 101 S.Ct. 1908, 68 L.Ed.2d 420 (1981); see also Hudson v. Palmer, 468 U.S. 517, 104 S.Ct. 3194, 82 L.Ed.2d 393 (1984) (holding that a deprivation of a constitutionally protected property interest caused by a state employee's random, unauthorized conduct does not give rise to a § 1983 procedural due process claim, unless the state fails to provide an adequate post-deprivation remedy).

         There is no question, therefore, that summary administrative enforcement action may be taken in emergency situations. Where competent evidence allows an official to reasonably believe that an emergency exists, discretionary invocation of emergency procedures will only amount to a constitutional violation if the action is arbitrary or an abuse of discretion. Elsmere Park Club, L.P. v. Town of Elsmere, 542 F.3d 412, 418 (3d Cir. 2008). “Where government officials are faced with a decision in which a failure to act quickly could have serious health consequences, perfection or near perfection is not the standard.” Id. at 420.

         In this case, however, there is a fundamental factual dispute as to whether the defendants reasonably could have believed that an actual emergency existed, since the plaintiffs maintain that there is no evidence upon which the defendants could have concluded that there was any danger to the life or health of any occupants of their properties. Specifically, with respect to the plaintiffs' William Street, Willow Street, and Philo Street properties, all of which the defendants allegedly condemned due to health and safety concerns, the plaintiffs claim that the alleged “imminent roof collapse” in the William Street property consisted of mere wet ceiling tiles in the first floor unit caused by an oversight from the roofers. Likewise, Garanin alleges that the lack of heat in the Willow Street property was on its way to being addressed on the same day it was closed, and the red-tagged furnace in the Philo Street property posed no immediate danger as soon as UGI labeled it with the red tag. Should the plaintiffs prove these well-pleaded facts, there would no longer be an emergent or exigent circumstance to justify the condemnation of these properties without some form of pre-deprivation process. Therefore, these factual disputes, in addition to our already-established analysis on the issue of qualified immunity at this stage in the proceeding, preclude a finding that the defendants are entitled to qualified immunity on the plaintiffs' procedural due process claims.

         We thus move to the plaintiffs' claim that they were issued citations for prohibited occupancy without notice or a hearing. As we view it, this issue is intertwined with the question of whether the defendants were justified in condemning the properties in the first place. We have concluded that, if the plaintiffs are able to prove that these condemnations lacked some form of exigency, they were entitled to notice or a hearing before these properties were closed. We have also found that there are factual disputes regarding whether the properties should not have been condemned at all. It follows from these factual disputes that the subsequent prohibited occupancy citations may have also been equally problematic since they too were issued without notice or a hearing and assessed a monetary penalty on the plaintiffs. Therefore, given the close connection between these fact-bound and factually contested claims, we find that the defendants' motion to dismiss is likewise denied as to this claim.

         Lastly, we address the defendants' argument that certain named defendants should be dismissed under Count I of the plaintiffs' complaint since the plaintiffs failed to allege any facts which mention or involve these defendants. Specifically, the defendants claim that the plaintiffs fail to allege facts involving Defendants Courtright and Uher as to the William Street property, Defendants Courtright and Carmona as to the Willow Street Property, and Defendant Courtright as to the Philo Street property. The plaintiffs appear to rejoin that Defendant Courtright, as the mayor and ultimate decision maker for the City of Scranton, failed to prevent or remedy these due process violations occasioned by city officials working under his authority despite having notice from Garanin via May 23, 2019 letter, (see Doc. 1-5, 35), that these violations were occurring and ongoing. The plaintiffs do not appear to have a similar counter as to Defendants Uher and Carmona for the William and Willow Street properties.

         While we discern no direct reference to Defendant Uher in the plaintiffs' complaint regarding the William Street property, to Defendant Carmona regarding the Willow Street property, or to Defendant Courtright as to any of the aforementioned properties, we note that the plaintiffs' complaint is all-encompassing, stating generally that the defendants prevented the reopening of their properties and engaged in a continual pattern of harassment and delay with respect to same. To the extent that these allegations are meant to include Defendants Uher, Carmona, or Courtright, the plaintiffs should specifically state these facts and allegations, noting how these defendants were involved in this alleged pattern of conduct. Thus, we will grant the defendants' motion to dismiss as to the plaintiffs' claims in Count I as to Defendant Uher with respect to the William Street Property, Defendant Carmona with respect to the Willow Street property, and Defendant Courtright with respect to the William, Willow, and Philo Street properties. This dismissal is without prejudice, however, to allow the plaintiffs to amend their complaint accordingly, should these defendants be included in these claims within Count I of the complaint.[4]

         C. The Defendants' Motion to Dismiss Count II of the Plaintiffs' Complaint for Fourteenth Amendment Substantive Due Process Violations is Denied.

         The Fourteenth Amendment provides, in part, that “no State [shall] deprive any person of life, liberty, or property without due process of law . . . .” U.S. Const. Amend. XIV, § 1. The legal standards governing substantive due process claims are both familiar and exacting. In this context: “The Supreme Court has emphasized that the ‘touchstone of due process' is protection against arbitrary government action. Government action is ‘arbitrary in the constitutional sense' when it is ‘so egregious, so outrageous, that it may fairly be said to shock the contemporary conscience.' ” L.R. v. Sch. Dist. of Philadelphia, 836 F.3d 235, 246 (3d Cir. 2016) (footnotes omitted). Thus:

To establish a substantive due process claim, a plaintiff must prove the particular interest at issue is protected by the substantive due process clause and the government's deprivation of that protected interest shocks the conscience . . . . Deprivation violates due process only when it shocks the conscience, which encompasses only the most egregious official conduct . . . while the meaning of the [shocks the conscience] standard varies depending upon factual context, merely alleging an improper motive is insufficient, even where the motive is unrelated to the merits of the underlying decision. Chainey v. Street, 523 F.3d 200, 219-20 (3d Cir. 2008) (internal citations and quotations omitted).

L.H. v. Pittston Area Sch. Dist., 130 F.Supp.3d 918, 928-29 (M.D. Pa. 2015), aff'd, 666 Fed.Appx. 213 (3d Cir. 2016). Thus, determining what shocks the conscience is not a “precise” or technical exercise. Eichenlaub v. Twp. of Indiana, 385 F.3d 274, 285 (3d Cir. 2004). The Supreme Court has noted, however, that “conduct intended to injure in some way unjustifiable by any government interest is the sort of official action most likely to rise to the conscience-shocking level.” Lewis, 523 U.S. at 849.

         In this case, the plaintiffs have alleged that the defendants have arbitrarily condemned and subsequently delayed the release of the plaintiffs' properties from condemnation, refused to issue the permits necessary to operate these properties as rental properties, and delayed access to the appeals process after these properties were condemned. (See Doc. 1). The plaintiffs further allege that these delays are due to a personal vendetta that the defendants have against the plaintiffs, since they allegedly told the plaintiffs that their properties were “disgusting” and should be shut down. (See id.) The defendants rejoin that the plaintiffs have failed to plead sufficient facts to give rise to these serious allegations and that the complaint merely sets forth conclusory allegations mirroring the requirements for a substantive due process violation, rather than explicitly setting forth facts related to this claim. The defendants also allege that there are insufficient facts to implicate Defendant Courtright in this claim, and that he should accordingly be dismissed from this action.

         Although substantive due process claims must meet exacting standards of proof, out of an abundance of caution and reading the allegations in the complaint in the plaintiffs' favor, we find that the plaintiffs' substantive due process claim should survive the defendants' motion to dismiss. Recognizing that the plaintiffs' complaint does allege a substantive due process claim in a conclusory fashion which does not necessarily include all named defendants, we nonetheless note that the incorporation of the previous paragraphs allows the plaintiffs to cobble together what could be a valid substantive due process claim, if proven. These allegations articulate a claim based on the alleged selective enforcement of local rules and codes to suppress the plaintiffs' business activity. Since we find that such an allegation could support a substantive due process claim in this case, the plaintiffs' claim set forth in Count II will be permitted to proceed subject to further consideration of this claim on a fully documented motion for summary judgment. The defendants' motion to dismiss this count is accordingly denied.

         D. The Defendants' Motion to Dismiss Count III of the Plaintiffs' Complaint for Fourteenth Amendment Equal Protection Violations is Denied.

         The Equal Protection Clause of the Fourteenth Amendment directs that no state shall “deny to any person within its jurisdiction the equal protection of the laws.” U.S. Const. amend. XIV, § 1. The plaintiffs' equal protection argument in this case advances what is called a “class of one” claim-an assertion that the plaintiffs have been treated differently than all others in some invidious fashion. On this score, “cases have recognized successful equal protection claims brought by a ‘class of one,' where the plaintiff alleges that she has been intentionally treated differently from others similarly situated and that there is no rational basis for the difference in treatment.” Vill. of Willowbrook v. Olech, 528 U.S. 562, 564, 120 S.Ct. 1073, 1074, 145 L.Ed.2d 1060 ...

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