United States District Court, M.D. Pennsylvania
VSEVOLOD GARANIN, et al. Plaintiffs,
CITY OF SCRANTON, et al. Defendants.
C. CARLSON UNITED STATES MAGISTRATE JUDGE.
Statement of Facts and of the Case
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.
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.
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. (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. (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., ¶¶
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.,
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. (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.,
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.,
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
On the contrary the GARANIN controlled WILLOW STREET PORPERTY
[sic] and the PHILO STREET PORPERTY [sic] were closed.
(Id., ¶¶ 133-35) (emphasis in original).
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
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.
Motion to Dismiss-Standard of Review
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
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
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.
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.
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).
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).
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).
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.
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
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.
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.
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.
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.
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.
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.
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
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.
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.
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.
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
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
Defendants' Motion to Dismiss Count II of the
Plaintiffs' Complaint for Fourteenth Amendment
Substantive Due Process Violations is Denied.
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.
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.
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.
Defendants' Motion to Dismiss Count III of the
Plaintiffs' Complaint for Fourteenth Amendment Equal
Protection Violations is Denied.
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 ...