CARTER v. CITY OF PHILADELPHIA

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

LANGDON CARTER, : CIVIL ACTION

Plaintiff, :

:

v. :

:

CITY OF PHILADELPHIA, :

Defendant. : No. 20-545

MEMORANDUM OPINION

Timothy R. Rice December 8, 2021

U.S. Magistrate Judge

Plaintiff Langdon Carter alleges that Defendant City of Philadelphia is responsible for the

loss of his home and possessions because police assisted in his illegal eviction. See Compl. (doc.

1). He brings claims for: (1) violations of his Fourteenth Amendment right to due process

(Count I); (2) violations of his Fourth Amendment right against unfounded search and seizure

(Counts II and III); (3) wrongful eviction (Count IV); and (4) conversion (Count V). Id. ¶¶ 37-

62. The City seeks summary judgment, and its motion is granted because Carter failed to

provide evidence from which a reasonable jury could find the City liable under any of his claims.

I. Legal Standard

Summary judgment is appropriate where “there is no genuine dispute as to any material

fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). The

evidence and any inferences from the evidence must be viewed in the light most favorable to the

non-moving party. See Ray v. Warren, 626 F.2d 170, 173 (3d Cir. 2010). If reasonable minds

could conclude that there are sufficient facts to support a plaintiff’s claims, summary judgment

should be denied. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Summary

judgment should be granted only if no “reasonable jury could return a verdict for the nonmoving

party,” based on the evidentiary record. Reedy v. Evanson, 615 F.3d 197, 210 (3d Cir. 2010).

A plaintiff may bring a civil rights action under 42 U.S.C. § 1983 against any person who

allegedly deprived the plaintiff of his federal constitutional rights while acting pursuant to state

law. See West v. Atkins, 487 U.S. 42, 48 (1988). To prevail on a claim involving a violation of

the Fourteenth Amendment right to procedural due process, Carter must show: (1) a protected

property interest; and (2) a procedure that did not afford meaningful notice and an opportunity to

be heard. Fuentes v. Shevin, 407 U.S. 67, 80 (1972); Alvin v. Suzuki, 227 F.3d 107, 116 (3d Cir.

2000). To establish a violation of his Fourth Amendment right against unreasonable “search and

seizure,” Carter must show his home or person was searched or seized without “probable cause.”

Carpenter v. United States, 138 S. Ct. 2206, 2213 (2018). To prove a “wrongful eviction” claim,

Carter must show a “wrongful act by the landlord which result[ed] in an interference of [his]

possession” of the property. Pollock v. Morelli, 369 A.2d 458, 460 (Pa. Super. 1976) (citing,

inter alia, Minnich v. Kauffman, 108 A. 597 (Pa. 1919) (landlords who interfere with the implied

covenant of quiet enjoyment of their tenants are liable for damages)). Finally, to prove a

conversion claim, Carter must show the City deprived him of property without his consent and

without “lawful justification” by “an act intended to affect” the property. Shonberger v. Oswell,

530 A.2d 112, 114 (Pa. Super. 1987)

Carter also must satisfy the legal standard for suing municipalities.1 With respect to his

constitutional claims, Carter must show that the constitutional violation was the result of an

officially adopted policy or well-established custom or practice. Monell v. Dep’t of Soc. Servs.

of N.Y.C., 436 U.S. 658, 691 (1978). With respect to his state law claims, Carter must show

liability is not precluded by the Political Subdivision Tort Claims Act, 42 Pa. C.S. § 8541 (“Tort

1 In March 2011, Carter dropped his claim against the property owner who carried out the

illegal eviction. See 3/11/21 Notice of Voluntary Dismissal (doc. 8). He also failed to bring any

claims against the individual police officers involved in this dispute.

Claims Act”), which states that “no local agency shall be liable for any damages on account of

any injury to a person or property caused by any act of the local agency or an employee thereof

or any other person,” with limited exceptions.

II. Facts Most Favorable to Carter

On the evening of September 25, 2019, Carter was in his home at 2026 North 20th Street

in Philadelphia, recovering from a seizure. Def. Mem. Ex. B, Carter Dep., at 65, 106. He had

been living there since 2009. Id. at 20. Carter had been a handyman at the building and arranged

with the owner to reside rent-free in exchange for maintenance services. Id. After the owner

died intestate, Carter applied to participate in Philadelphia’s Owner Occupied Property (“OOP”)

program. Def. Mem. Ex. C (April 2018 Application and Agreement for OOP). As part of that

program, Carter agreed to maintain the property, pay back taxes, and record a deed establishing

ownership within three years. Id.; see also Pl. Mem. Ex. D (5/18/18 Agreement to pay back

taxes on the 20th Street property). Carter complied with his agreement as of September 25,

2019.2 Carter Dep. at 30, 49 56.

In August 2019, Demetrius Thornton, a relative of the deceased prior owner, sought to

name himself the prior owner’s sole heir and claim ownership of the property. Compl. ¶ 22. On

September 25, 2019, Thornton brought three people with him to evict Carter from the 20th Street

property. Carter Dep. at 70. One of the people accompanying Thornton identified himself as a

police officer and another identified himself as the property’s purchaser. Id. They directed

2 There is some evidence that Carter may have improperly filled out his original OOP

paperwork, and that the person he hired to record the deed in his name may have intentionally

failed to do so. Compare Carter Dep. at 149 (he paid someone $400 to establish title), with id. at

157-58 (“Mr. Carter was scammed on this issue[.]”). I nonetheless view the facts in the light

most favorable to Carter and assume he was in full compliance and properly established a legal

interest in the property. Ray, 626 F.2d at 173.

Carter to leave the property immediately because it had been sold. Id. at 66-71; see also Def.

Mem. Ex. H (9/26/19 Deed Transfer).

Thornton and several of Carter’s neighbors independently called the police. Carter Dep.

at 65-67, 96. Police asked Carter for identification and he produced an identification card with a

West Ontario Street address, not the address of the 20th Street property. Id. at 60, 83, 93. Police

concluded that Carter was a “professional squatter.” Id. at 45 (Police told Carter, “Open your

mouth, you go [to] jail.”). Carter was warned by several police officers that he could never

return to the 20th Street property or even re-enter to gather his personal effects. Id. at 101

(officer told Carter he could not go back inside the property to retrieve his shoes), 104-05, 110-

11. Carter heard one officer tell another that Carter had a right to produce his documents to

prove his ownership of the property, but the first officer was instructed to “cuff him” regardless.

Pl. Mem. Ex. L (Interrogatory Answers), Int. 12.

Police handcuffed Carter and put him in a police vehicle. Carter Dep. at 98. Police did

not interfere as Thornton and his companions boarded up the 20th Street property, effectively

barring Carter’s re-entry. Carter Dep. at 98. Police also discovered that Carter was subject to an

outstanding out-of-state arrest warrant. Statement of Undisputed Facts (doc. 18-1) (“Undisputed

Facts”) ¶ 22; see also Def. Mem., Ex. F (9/25/19 Complaint/Incident Report noting “arrest in ref

to warrant OCH 10ST061391”). After processing Carter, police released him at 3 a.m. on

September 26, 2019. Carter Dep. at 109.

III. Discussion

The City seeks summary judgment on Carter’s constitutional claims because he cannot

show his losses were caused by an official policy or custom.3 I agree.

To show that his constitutional deprivation was caused by a municipal policy, Carter

must identify the “official proclamation, policy, or edict” that was issued by a leader with the

authority to do so. Mulholland v. County of Berks, 706 F.3d 227, 237 (3d Cir. 2013). To show

that his deprivation was caused by a “custom,” Carter must identify a practice that is “so

permanent and well-settled as to virtually constitute law.” Id.

The parties have identified two relevant policies. The first, Policy Directive 3.17, governs

how “police personnel will enforce statutes prohibiting” self-help eviction practices, i.e., “any

action or threatened action taken, without legal process, by a landlord or a landlord’s agents,

which is intended to dispossess a tenant from a dwelling unit or prevents the tenant from lawfully

occupying the dwelling unit.” Def. Mem. Ex. I (doc. 17-12) (“Directive 3.17”). Pursuant to

Directive 3.17, police officers called to a self-help eviction dispute must: (1) establish the

3 The City also argues Carter lacks standing to file suit. Def. Mem. at 5-8. It contends that

the OOP does not create property interests, and that Carter has failed to produce evidence

showing the City deprived him of a protected property interest. Id. at 7 (because Carter “failed

to seek and record title . . . there is no basis for him to claim that his OOP[] agreement

constituted a legally protected interest in the subject property”). An equitable property interest,

however, is sufficient to establish standing. Matos v. Berks Cty. Tax Claim Bureau, 228 A.3d

976, 980-81 (Pa. Commw. Ct. 2020). Carter has testified that the prior owner wanted him to

own the property after her death, Carter Dep. at 143-44, that he paid off the property’s second

mortgage, id. at 147, financed improvements to the property, id. at 24, established and paid for

the property’s utilities, id. at 23-24, 43, and obtained property insurance, Pl. Mem. Ex. J (2018

USAA homeowners insurance policy for the 20th Street property in Carter’s name). A

reasonable jury could find this evidence establishes an equitable interest in the property. Moore

v. Keller, 98 A.3d 1, 4 (Pa. Commw. Ct. 2014) (finding appellant who “had been living at the

Property for 18 years and had invested substantial sums in capital improvements and had been

paying the tax bill,” was “an equitable owner of the Property” despite not being named “on the

last registered deed to the Property”). The City further argues Carter lacks standing because he

cannot establish the City ever took possession of his property. Def. Mem. at 8. This ignores,

however, Carter’s argument that Thornton took his property with “an implicit assist from the

police.” Pl. Mem. at 6. Although I find the City cannot be held liable based on based on Monell

and the Tort Claims Act, there is sufficient evidence to establish standing. Moore, 98 A.3d at 4.

parties’ identities; (2) issue to all parties and ask all parties to read the “Tenant’s Referral

Notice”; (3) require the landlord to produce the “Alias Writ of Possession” and, if the landlord is

unable to do so, “[i]nform the tenant that they are entitled to regain possession of the premises

immediately”; (4) “[i]nform the landlord to take prompt remedial action to restore access or

habitability to the dwelling unit or issue a Non-Traffic Summary Citation”; (5) let the landlord

know they need an Alias Writ of Possession from the Municipal Court to go forward with the

eviction; (6) “provide stand-by assistance while the tenant regains immediate entry to the

dwelling unit”; and (7) “[p]repare a Complaint or Incident Report (75-48) listing all pertinent

information and action taken by police.” Directive 3.17 at 2-3. If a landlord violates the law

against self-help evictions, police must issue a Non-Traffic Summary Citation and prepare a

Complaint/Incident Report. Id. at 3.

The other policy, Directive 77, governs police execution of out-of-state warrants. Def.

Mem. Ex. G (doc. 17-10). Under Directive 77, police apprehending a fugitive must ensure they

have the right person by verifying the arrestee’s identity, checking at least the: (1) name; (2) date

of birth; (3) physical description; (4) fingerprints; and (5) social security or other identifying

number. Directive 77 at 6. Police also must verify that the issuing jurisdiction still seeks the

arrest and allow the fugitive to leave after six hours if the other jurisdiction has not responded.

Id. at 5. Further, police are required to prepare reports establishing probable cause for the arrest

and check for other outstanding warrants. Id. at 5-6.

Due Process

Carter argues the City is liable based on its failure “to adopt and implement a needed

lockout enforcement policy better calibrated, and with a greater likelihood of preventing said

deprivations.” Pl. Mem. at 4. Carter alleges that police should have arrested Thornton at the

scene. Id. at 5. He claims that either the City failed to “adopt and train” officers in a policy that

would allow them to arrest landlords who, like Thornton, illegally evict tenants or, if police had

the authority to arrest Thornton but chose not to do so, that this constitutes a police “custom” of

not arresting landlords pursuing illegal evictions.4 Id.

There is no dispute that Directive 3.17 outlines the steps the police should follow when

responding to a self-help eviction. Although the evidence, viewed in the light most favorable to

Carter, shows that the police did not abide by those steps in responding to Thornton’s eviction of

Carter,5 it is insufficient to show that the police had a custom of not following Directive 3.17

when responding to evictions.

Municipalities can be held liable when their “failure to train” employees constitutes a

custom that demonstrates “deliberate indifference.” City of Canton, Ohio v. Harris, 489 U.S.

378, 387 (1989) (“if a concededly valid policy is unconstitutionally applied by a municipal

4 In his Complaint, Carter alleges the City conspired to deprive him of his due process

rights. Compl. ¶¶ 37-42. However, he makes no argument to support this assertion. See

generally, Pl. Mem. He has produced no evidence from which a reasonable jury could find that

the police, some of whom were by his own account summoned by his neighbors to protect his

interests, agreed with Thornton to deprive him of due process. Carter Dep. at 95 (police were

called by Thornton and multiple neighbors). Moreover, as explained, infra, he has failed to

produce evidence of a “separate underlying intentional or criminal act that can support a civil

conspiracy claim” since “[s]trict liability and negligence counts are insufficient to support [] civil

conspiracy claim[s].” Goldstein v. Phillip Morris, Inc., 854 A.2d 585, 590 (Pa. Super. 2004).

5 Viewing the facts in the light most favorable to Carter, the police did not permit Carter to

go back into the premises to produce documentation showing he was entitled to live at the 20th

Street property once they saw his identification card with another address. Carter Dep. at 60.

The police also did not require Carter and Thornton to read the Tenant’s Referral Notice.

Although the police stated in their Incident Report that they informed Thornton that he needed an

Alias Writ of Possession from the Municipal Court to go forward with the eviction, they did not

tell Thornton or Carter that Carter had the right to re-enter the premises. Def. Mem. Ex. E

(Incident Report stating Thornton was advised to obtain an Eviction Notice when he complained

Carter refused to leave his property). The police did not issue a Summary Citation when they

saw Thornton blocking Carter’s re-entry to the property and even assisted in keeping him out.

Finally, the police were specifically authorized to “provide stand-by assistance while [Carter]

regain[ed] immediate entry to the dwelling unit” but failed to do so. Directive 3.17 at 3.

employee, the city is liable if the employee has not been adequately trained and the constitutional

wrong has been caused by that failure to train”). To succeed on a failure to train claim, however,

Carter must produce evidence that the municipal employees lacked appropriate training. See,

e.g., id. at 382 (noting that failure to train claim was supported by testimony that “shift

commanders were not provided with any special training”). Perhaps discovery may have

uncovered evidence of a practice or custom of deviating from Directive 3.17, as police did here,

but Carter has failed to present it.

Instead, he argues that Directive 3.17 is insufficient because it does not specifically

authorize the police to arrest landlords who continue to pursue an illegal eviction, rendering

police “powerless to prevent” his loss. Id. at 9. He fails, however, to show that such a specific

authorization is necessary if the police otherwise comply with the safeguards of Directive 3.17.

He also concedes that nothing in Pennsylvania law prevents the police from arresting landlords

pursuing an illegal eviction. Pl. Br. at 8.

Although Carter has produced evidence that unidentified and uncharged officers may

have failed to fully comply with departmental policy in Directive 3.17, he has failed to produce

sufficient evidence that, viewed in the light most favorable to him, would permit a reasonable

jury to conclude that he suffered a constitutional deprivation caused by the City’s policies,

practices, or customs. Monell, 436 U.S. at 691; Canton, 489 U.S. at 387.

Search and Seizure

Carter also claims that police conducted an illegal search and seizure when they entered

the vestibule of his home (Count II) and arrested him (Count III). Compl. ¶¶ 43-52.

Carter has disputed the City’s assertion that officers never entered his home, stating they

entered its vestibule. Statement of Disputed Facts (doc. 22-1) ¶ 19. The deposition transcript he

cites, however, fails to support his claim. Carter testified that Thornton entered the vestibule.

Carter Dep. at 90. When asked whether uniformed officers entered his home, Carter answered

“no.” Id. at 91. Moreover, Carter also testified that, when he argued to the police that he could

prove he was the property’s owner because his belongings were inside, they refused to enter and

verify his statements. Id. at 81 (“My mail [wa]s right here at the door in the mailbox but they

didn’t want to come in.”). I grant judgment to the City on Count II because Carter has produced

no evidence from which a reasonable jury could conclude that police entered the home.

The City is also entitled to judgment on Count III because the out-of-state warrant

provided probable cause for Carter’s arrest. United States v. White, 75 F. App’x 894, 896–97

(3d Cir. 2003) (a valid warrant provides probable cause for arrest). Carter does not dispute that

he was arrested on an outstanding warrant, nor does he challenge the warrant’s validity.

Undisputed Facts ¶ 22. Thus, he cannot show he was arrested without probable cause. See

Holmes v. McGuigan, 184 F. App’x 149, 151 (3d Cir. 2006) (affirming summary judgment

against plaintiff who had been arrested “after a computerized database and a conversation with

his dispatcher informed [police] of an outstanding warrant” despite plaintiff’s mistaken belief

that “the warrant had already been ‘taken care of’” when plaintiff “produced no evidence that

would tend to undermine the warrant’s validity.”).6

Wrongful Eviction and Conversion

Carter contends that his wrongful eviction was perpetrated with “an implicit assist” from

6 The City also argues Carter has failed to establish an equal protection claim, noting that

he has not produced evidence showing he was treated differently than other similarly situated

persons. Def. Mem. at 10 (citing, inter alia, Brown v. Borough of Mahaffey, 35 F.3d 846, 850

(3d Cir. 1994)). Although I agree, I find that Carter never brought an equal protection claim.

See Compl. ¶¶37-64 (averring claims based on due process (I), search and seizure (II and III),

wrongful eviction (IV), and conversion (V)).

police. Pl. Mem. at 6. He fails to explain, however, how his state law claims fit into one of the

limited exceptions to the Tort Claims Act’s restrictions on municipal liability. Pennsylvania

allows municipal liability only when damages would be available against a private individual, 42

Pa. C.S. § 8542(a)(1), the municipal actor was negligent, id. § 8542(a)(2), and, with respect to

damage or loss of real or personal property, the property was “in the possession or control of the

local agency,” id. §§ 8542(b)(2), 8542(b)(3).7

Carter testified that Thornton, not the police, stole his real property and barred access to

his personal property. Carter Dep. at 98 (Thornton and the buyer boarded up the home), 103-04,

166 (police took only his “pride” but made it possible for others to take his belongings). Carter

has failed to produce evidence from which a reasonable jury could find his state law claims

against the City exempted from the state law restrictions on municipal liability.8

An appropriate order follows.

7 Although the Tort Claims Act denies immunity to employees of local agencies for their

intentional torts, it does not strip immunity from the municipality itself. Cooper v. City of

Chester, 810 F. Supp. 618, 626 (E.D. Pa. 1992) (citing, inter alia, Marko v. Philadelphia, 576

A.2d 1193, 1193 (Pa. Commw. 1990), app. granted, 592 A.2d 46 (Pa. 1991); King v. Breach,

540 A.2d 976, 979 (Pa. Commw. 1988); Deluca v. Whitemarsh Township, 526 A.2d 456, 457

(Pa. Commw. 1987); Miller v. Emelson, 520 A.2d 913, 915 (Pa. Commw. 1987); Steiner v.

Pittsburgh, 509 A.2d 1368, 1369–70 (Pa. Commw. 1986); Dudosh v. Allentown, 629 F. Supp.

849, 856 (E.D.Pa.1985); Kuchka v. Kile, 634 F. Supp. 502, 513 (M.D. Pa.1985); Paul v. John

Wanamakers, Inc., 593 F. Supp. 219, 222–23 (E.D. Pa.1984)).

8 The City also argues Carter cannot show it is liable for wrongful eviction because it

cannot show a landlord-tenant relationship between the two parties. Def. Mem. at 16. It is

unclear, however, whether a wrongful eviction claim, which is based on the implied covenant of

quiet enjoyment between landlord and tenant, could be based on something akin to a tortious

interference with contract claim. See Maier v. Maretti, 671 A.2d 701, 707 (Pa. Super. 1995)

(noting that “one who intentionally and improperly interferes with the performance of a contract

between another and a third person by causing the third person not to perform the contract is

subject to liability to the other for the pecuniary loss resulting to the other from the failure of the

third person to perform the contract”). Because Carter has failed to show his claims fall within

exceptions to the Tort Claims Act, I need not determine whether a wrongful eviction claim can

be pursued on a tortious interference theory.