Hazzouri v. West Pittston Borough

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

RICHARD HAZZOURI and KIMBERLY : No. 3:18cv1982

HAZZOURI, :

Plaintiffs :

: (Judge Munley)

v. :

:

WEST PITTSTON BOROUGH, THE :

LUZERNE COUNTY OFFICE OF :

DEVELOPMENT; JUDY AITA; JAMES :

BUTERA and ELLEN QUINN, :

individually and in their capacity as :

members of the West Pittston :

Borough Council; and THOMAS :

BLASKIEWICZ, individually and in :

his capacity as Mayor of West :

Pittston Borough, :

Defendants :

::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::

MEMORANDUM

Before the court are motions to dismiss the plaintiffs’ amended complaint in

this due process violation case. (Docs. 21, 36, 37, 38, 39, 40). All motions have

been fully briefed, and oral argument has been held. The motions are thus ripe

for disposition.

Background

Plaintiffs Richard Hazzouri and Kimberly Hazzouri owned property located

in West Pittston Borough, Luzerne County, Pennsylvania, which they used as

their primary residence. (Doc. 19, Am. Compl. ¶ 23). Plaintiffs’ property was

substantially damaged in 2011 as a result of flooding caused by Hurricane Irene

and Tropical Storm Lee. (Id. ¶ 26).

Because of the county-wide damage sustained from Hurricane Irene and

Tropical Storm Lee, Luzerne County submitted a request to the United States

Department of Housing and Urban Development for the release of a Community

Development Block Grant Disaster Recovery to undertake a project known as the

Luzerne County Flood Disaster Project (hereinafter “Project”). (Id. ¶ 17). The

Project was created to acquire and demolish a number of properties in

participating municipalities throughout Luzerne County in order to remove flood

damaged structures. (Id. ¶ 18). West Pittston Borough was identified as a

participating municipality for the Project. (Id. ¶ 19). The Luzerne County Office of

Community Development (hereinafter “OCD”), which oversaw the Project,

adopted a Disaster Recovery Buyout Operations Plan (hereinafter “Plan”). (Id. ¶

13). The amended complaint does not specify when the plan was adopted, but it

was evidently in 2012 or 2013.

Although the plaintiffs owned property within West Pittston Borough, the

plaintiffs did not know about the Project until August 20, 2017, when they learned

of its existence through friends. (Id. ¶ 38). Plaintiffs immediately contacted OCD,

at which time they were informed that the Project was entering its final stage,

thus the plaintiffs would have to contact West Pittston Borough for approval to

apply. (Id. ¶ 40). Upon receiving approval, the plaintiffs filed their application for

relief under the Project on January 30, 2018. (Id. ¶ 45).

On March 6, 2018, OCD informed the plaintiffs that because they did not

apply for relief until the closing phase of the Project, it was unlikely that they

would be selected for a buyout. (Id. ¶ 46). Plaintiffs’ property was assigned to a

“waiting list.” (Id. ¶ 48). In the meantime, the plaintiffs discovered that another

buyout program existed, a mitigation grant program being administered by the

Luzerne County Flood Protection Authority (hereinafter “FPA”). (Id. ¶ 51). The

FPA advised the plaintiffs that it had received a number of applications for

participation from residents of West Pittston Borough and that their request would

also be included. (Id. ¶ 53). On April 3, 2018, however, the FPA advised the

plaintiffs that West Pittston Borough would not agree to allow the plaintiffs to

participate in the FPA Program. (Id. ¶ 56). Consequently, the plaintiffs did not

obtain a buyout. (Id. ¶ 57).

Based on the foregoing allegations, plaintiffs filed the instant complaint in

the Court of Common Pleas for Luzerne County claiming denial of Procedural

Due Process pursuant to 42 U.S.C. § 1983, denial of Substantive Due Process

pursuant to 42 U.S.C. § 1983, and denial of Equal Protection of the Law pursuant

to 42 U.S.C. § 1983. This matter was removed to this court on October 12, 2018.

The defendants have each filed separate motions to dismiss. At the request of

the plaintiff, a hearing was held on the motions on June 28, 2019, bringing this

case to its present posture.

Jurisdiction

Because this case is brought pursuant to 42 U.S.C. § 1983, the court has

jurisdiction pursuant to 28 U.S.C. § 1331. (“The district courts shall have original

jurisdiction of all civil actions arising under the Constitution, laws, or treaties of

the United States.”).

Legal Standard

The defendants filed their motions to dismiss plaintiffs’ complaint pursuant

to Federal Rule of Civil Procedure 12(b)(6). The court tests the sufficiency of the

complaint's allegations when considering a Rule 12(b)(6) motion. All well-

pleaded allegations of the complaint must be viewed as true and in the light most

favorable to the non-movant to determine whether, “ ‘under any reasonable

reading of the pleadings, the plaintiff may be entitled to relief.’ ” Colburn v. Upper

Darby Twp., 838 F.2d 663, 665–66 (3d Cir. 1988) (quoting Estate of Bailey by

Oare v. Cnty. of York, 768 F.2d 503, 506 (3d Cir. 1985)). The plaintiff must

describe “ ‘enough facts to raise a reasonable expectation that discovery will

reveal evidence of’ [each] necessary element” of the claims alleged in the

complaint. Phillips v. Cnty. of Allegheny, 515 F.3d 224, 234 (3d Cir. 2008)

(quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556 (2007)). Moreover, the

plaintiff must allege facts that “justify moving the case beyond the pleadings to

the next stage of litigation.” Id. at 234–35. In evaluating the sufficiency of a

complaint the court may also consider “matters of public record, orders, exhibits

attached to the complaint and items appearing in the record of the case.” Oshiver

v. Levin, Fishbein, Sedran & Berman, 38 F.3d 1380, 1384 n. 2 (3d Cir. 1994)

(citations omitted). The court does not have to accept legal conclusions or

unwarranted factual inferences. See Curay–Cramer v. Ursuline Acad. of

Wilmington, Del., Inc., 450 F.3d 130, 133 (3d Cir. 2006) (citing Morse v. Lower

Merion Sch. Dist., 132 F.3d 902, 906 (3d Cir. 1997)).

The federal rules require only that plaintiff provide “a short and plain

statement of the claim establishing that the pleader is entitled to relief,” a

standard which “does not require detailed factual allegations,” but a plaintiff must

make “a showing, rather than a blanket assertion, of entitlement to relief that

rises above the speculative level.” McTernan v. N.Y.C., 564 F.3d 636, 646 (3d

Cir. 2009) (citations and internal quotations and quotation marks omitted).

Discussion

Defendants West Pittston Borough, The Luzerne County Office of

Community Development, Ellen Quinn, Judy Aita, James Butera, and Thomas

Blaskiewicz have each filed separate motions to dismiss. After a review of the

motions, it appears that Defendants Quinn, Aita, Butera, and Blaskiewicz

(hereinafter “individual defendants”) move to dismiss the complaint on the same

grounds. As such, we will begin our review with Defendant West Pittston

Borough’s motion and conclude our review with the issues raised by the

individual defendants’ motions.

I. Defendant West Pittston Borough

We first address the motion to dismiss filed by Defendant West Pittston

Borough. Initially, the plaintiffs contend that we should not even consider the

merits of the Defendant West Pittston’s motion because the defendant should

have raised these issues in its motion to dismiss plaintiff’s first amended

complaint but did not. Defendant West Pittston also makes several substantive

arguments in favor of dismissal. We will address these arguments in turn.

A. Rule 12(g) Violation

On October 12, 2018, this case was removed to the Middle District of

Pennsylvania. Subsequently, on October 19, 2018, Defendant West Pittston

Borough filed a motion to dismiss. (Doc. 3). Instead of responding to the

defendant’s motion to dismiss, the plaintiffs filed an amended complaint on

November 21, 2018. (Doc. 6). The defendant immediately filed a motion to

dismiss the plaintiff’s amended complaint as untimely. (Doc. 7). The plaintiffs

then moved the court for leave to file an amended complaint on December 4,

2018. (Doc. 11). On January 15, 2019, we issued an order granting the

defendant’s motion to dismiss the plaintiffs’ amended complaint as untimely and

also allowing the plaintiffs leave to amend. (Doc. 18). We dismissed defendant’s

first motion to dismiss as moot. (Doc. 20). In accordance with our order granting

leave, the plaintiffs filed a second amended complaint on January 16, 2019.

(Doc. 19). Defendant West Pittston responded with the instant motion to dismiss.

(Doc. 21).

The plaintiffs argue that we should not consider the merits of Defendant

West Pittston’s instant motion to dismiss because the defendant is time-barred

from raising the issues under Federal Rule of Civil Procedure 12(g). The

Plaintiffs contend that the defendant should have raised the instant issues in its

November 26, 2018, motion to dismiss plaintiffs’ first amended complaint, as

these issues were available to the defendant at that time. Plaintiffs contend that

because the defendant did not raise these arguments when they were first

available, it waived the arguments. We disagree.

Federal Rule of Civil Procedure 12(g) imposes restrictions on the filing of

successive motions to dismiss. The rule provides: Except as provided in Rule

12(h)(2) or (3), “a party that makes a motion under [Rule 12] must not make

another motion under [Rule 12] raising a defense or objection that was available

to the party but omitted from its earlier motion.” FED. R. CIV. P. 12(G)(2). This rule

is “ ‘intended to eliminate unnecessary delay at the pleading stage’ by

encouraging ‘the presentation of an omnibus pre-answer motion in which the

defendant advances every available Rule 12 defense’ simultaneously rather than

‘interposing these defenses and objections in a piecemeal fashion.” Leyse v.

Bank of America Nat. Ass’n, 804 F.3d 316, 320 (3d Cir. 2015) (citing Charles

Alan Wright & Arthur R. Miller, 5C Fed. Prac. & Proc. Civ. § 1384 (3d ed. 2014)).

Here, Defendant West Pittston’s November 26, 2018 motion to dismiss

plaintiffs’ first amended complaint asked us to dismiss the amended complaint as

untimely. We granted that motion. We then afforded plaintiffs an opportunity to

file a second amended complaint, despite their untimeliness, which they did on

January 16, 2019. It is the plaintiffs’ position that, in addition to their argument

regarding plaintiffs’ timeliness, Defendant West Pittston should have also

included the instant issues in its motion to dismiss.

While we agree with the plaintiffs that a technical reading of Rule 12(g)

would prevent the defendant from raising issues that were available in the

plaintiffs’ first amended complaint, we find that to prevent the defendant from

doing so at this point would only cause further delay in this case.1 We agree with

the defendant that preventing the defendant from bringing the instant arguments

1 We note that plaintiffs’ untimeliness in filing their amended complaint was the

initial cause of delay in this matter.

now would inevitably lead the defendant to filing a Rule 12(g)(2)(A) motion and

moving for judgment on the pleadings on the same basis pursuant to Rule 12(c).

(See Garges v. People’s Light & Theater, Co., No. 09-CV-2456, 2012 WL

202828 at *3-4 (E.D. Pa. Jan. 24, 2012) (holding that requiring the defendant to

file a proper motion at a later time would only delay the inevitable refiling of the

same arguments at a later time)). In the interest of judicial expediency and

economy, we will address the defendant’s motion even though it asserts

arguments for dismissal that were not stated in its previous motion to dismiss.

B. Municipal Liability

Moving to the substance of Defendant West Pittston’s motion to dismiss,

we first address whether the Plaintiff has adequately alleged municipal liability

pursuant to 42 U.S.C. § 1983. Plaintiffs’ complaint asserts that Defendant West

Pittston Borough violated their rights to procedural and substantive due process

by not informing them in a timely manner of the buyout program. Defendant

West Pittston claims that as a municipality, it cannot be held liable unless the

alleged constitutional violations resulted from a custom, practice, or policy

followed by West Pittston Borough.

Under the standard first articulated in Monell v. Dept. of Soc. Servs., “local

governing bodies ... can be sued directly under § 1983 ... where ... the action that

is alleged to be unconstitutional implements or executes a policy statement,

ordinance, regulation, or decision officially adopted and promulgated by that

body's officers.” Monell v. Dept. of Soc. Servs. of the City of New York, 436 U.S.

658, 690 (1978). Thus, “[a] public entity ... may be held liable for the violation of

a constitutional right under 42 U.S.C. § 1983 only when the alleged

unconstitutional action executes or implements policy or a decision officially

adopted or promulgated by those whose acts may fairly be said to represent

official policy.” Reitz v. County of Bucks, 125 F.3d 139, 144 (3d Cir. 1997).

Liability exists when “‘there is a direct causal link between a municipal policy or

custom and the alleged constitutional deprivation.’ ” Brown v. Muhlenberg Twp.,

269 F.3d 205, 214 (3d Cir. 2001) (quoting City of Canton v. Harris, 489 U.S. 378,

385 (1989)).

“Policy is made when a ‘decisionmaker possess[ing] final authority to

establish a municipal policy with respect to the action’ issues an official

proclamation, policy, or edict.” McTernan v. City of York, PA, 564 F.3d 636, 658

(3d Cir. 2009) (quoting Andrews v. City of Phila., 895 F.2d 1469, 1480 (3d Cir.

1990)). “A course of conduct is considered to be a ‘custom’ when, though not

authorized by law, ‘such practices of state officials [are] so permanently and well-

settled’ as to virtually constitute law.” Id.

After a review of plaintiffs’ second amended complaint, we find that it

adequately alleges that West Pittston Borough’s actions against them were the

result of a municipal policy or custom. Among countless other allegations in their

thirty-nine page complaint, plaintiffs allege that the moving defendant:

[T]hrough a Policy and plan developed and implemented by Council

and the Mayor intentionally failed to properly notify the Project’s

target audience, but rather selectively notified certain residents of the

availability of funding under the Project. Pursuant to that Policy and

plan, a limited number of residents, including, but not limited to, one

or more relatives of public officials, were made aware of the existence

of the project by the Borough while the general public intentionally

was not notified as required by the plan. The Plaintiffs believe, and

therefore aver, that the Policy and plan developed and implemented

by Council and the Mayor served two improper purposes as follows:

(i) to ensure that sufficient funding existed so that properties owned

by the selectively notified and/or politically connected residents would

be bought out; and (ii) to ensure there was no reduction in the

Borough’s real estate and income tax base.

(Doc. 19, Am. Compl. ¶¶ 72-74).

At this stage in the proceedings, the plaintiffs must simply allege municipal

liability. A cursory review of plaintiffs’ complaint reveals several pages of

allegations regarding the customs and policies of West Pittston Borough which,

according to the plaintiffs, resulted in constitutional violations. As such, we find

that Defendant West Pittston Borough has adequately alleged municipal liability

and satisfied the requirements of Monell.

C. Procedural Due Process

Defendant West Pittston next moves to dismiss plaintiffs’ procedural due

process violation claim. To state a claim under § 1983 for deprivation of

procedural due process rights, a plaintiff must allege that “(1) he was deprived of

an individual interest that is encompassed within the Fourteenth Amendment’s

protection of ‘life, liberty, or property,’ and (2) the procedures available to him did

not provide ‘due process of law.’” Hill v. Borough of Kutztown, 455 F.3d 225,

233–34 (3d Cir. 2006) (quoting Alvin v. Suzuki, 227 F.3d 107, 116 (3d Cir.

2000)). The plaintiffs do not claim that they were deprived of any liberty interest,

therefore we focus only on whether they have alleged deprivation of a protected

property interest.

The plaintiffs contend that they have a protected property interest in funds

originating from the Department of Housing and Urban Development under the

Disaster Relief Community Development Block Grant Program. Plaintiffs allege

that these funds were distributed to the Luzerne County Flood Disaster Project

through the OCD’s adoption of the Disaster Recovery Buyout Operations Plan.

In response, Defendant West Pittston argues that the plaintiffs have no protected

property interest because the funds at issue were awarded on discretionary basis

and therefore not part of an entitlement program.

“Property interests, of course, are not created by the Constitution. Rather

they are created and their dimensions are defined by existing rules or

understandings that stem from an independent source such as state law-rules....”

Bd. of Regents of State Colleges v. Roth, 408 U.S. 564, 577 (1972); see also

Kelly v. Sayreville, N.J., 107 F.3d 1073, 1077 (3d Cir. 1997) (“State law creates

the property rights protected by the Fourteenth Amendment.”). “A property

interest subject to protection by the due process clause results from a ‘legitimate

claim of entitlement’ created by an independent source such as state law.”

Midnight Sessions, Ltd. v. City of Phila., 945 F.2d 667 (3d Cir. 1991), overruled

on other grounds by United Artists Theatre Circuit, Inc. v. Warrington, 316 F.3d

392 (3d Cir. 2003) (quoting Bd. of Regents, 408 U.S. at 577).

The Third Circuit has held “that an entitlement may exist for a benefit

sought but not yet obtained if state law limits the exercise of discretion by the

state official responsible for conferring the benefit.” Id. at 679 (citing Winsett v.

McGinnes, 617 F.2d 996, 1007 (3d Cir. 1980) (finding liberty interest in work

release)). It is important to note that absent such limitations on official discretion,

the statute or regulation cannot create a property interest, as “a benefit is not a

protected entitlement if government officials may grant or deny it in their

discretion.” Town of Castle Rock v. Gonzales, 545 U.S. 748, 756 (2005). In other

words, “the applicant ‘must show that particularized standards or criteria guide

the government’s decisionmakers’ in order to claim protection under the due

process clause.” Baldwin v. Housing Authority of the City of Camden, New

Jersey, 278 F. Supp. 2d 365, 379 (D.N.J. 2003) (quoting Olim v. Wakinekona,

461 U.S. 238, 249 (1983)).

Instantly, the plaintiffs have alleged what they argue to be mandatory

language set forth in the Plan which places particularized standards or criteria to

guide official decisionmakers. The plaintiffs contend that this language, in effect,

places substantial limits on official discretion. First, plaintiffs’ allege that Section

3.0 of the Plan provides that “[a]pplications will be awarded funding based on

priorities established by Luzerne County until all funds are exhausted.” (Doc. 19,

Am. Compl. ¶ 32) (emphasis in Doc. 19). Plaintiffs further point to the process for

priority determination, and point out additional language in the Plan which

indicates that the priorities “will be followed until funding runs out . . .” (Id. ¶ 33).

Plaintiffs’ complaint continues with various allegations regarding the standards

outlined in the plan guide for the buyout project. (See Id. ¶¶ 61-63, 89-91, 102-

105).

While we acknowledge the defendant’s position that there may be

additional language in the Plan that contradicts the above-mentioned mandatory

language which may be made clearer during discovery, at this very early stage in

the proceedings, we must accept plaintiffs’ allegations as true and in the light

most favorable to them. Thus, at the pleading stage, we find that the plaintiffs

have sufficiently alleged a protected property interest in funds originating from

the Department of Housing and Urban Development under the Disaster Relief

Community Development Block Grant Program to support their procedural due

process claim.

D. Substantive Due Process

Defendant West Pittston next maintains that Count III of plaintiffs’ amended

complaint fails to allege a violation of plaintiffs’ substantive due process rights. As

noted above, the Fourteenth Amendment to the United States Constitution

provides that no state shall “deprive any person of life, liberty, or property,

without due process of law....” U.S. CONST. amend. XIV. The substantive due

process clause is a “component of the [Fourteenth Amendment] that protects

individual liberty against ‘certain government actions regardless of the fairness of

the procedures used to implement them.’ ” Collins v. City of Harker Heights, 503

U.S. 115, 125 (1992) (quoting Daniels v. Williams, 474 U.S. 327, 331 (1986)).

However, “[t]he history of substantive due process counsels caution and

restraint[,]” and “[e]ach new claim to [substantive due process] protection must

be considered against a background of Constitutional purposes, as they have

been rationally perceived and historically developed.” Regents of Univ. of Mich.

v. Ewing, 474 U.S. 214, 229 (1985) (Powell, J., concurring) (citations and internal

quotations omitted).

To establish a substantive due process claim, “‘a plaintiff must prove [1] the

particular interest at issue is protected by the substantive due process clause

and [2] the government's deprivation of that protected interest shocks the

conscious.’” Chambers ex rel. Chambers v. Sch. Dist. of Phila. Bd. of Educ., 587

F.3d 176, 190 (3d Cir. 2009) (quoting Chainey v. Street, 523 F.3d 200, 219 (3d

Cir. 2008)).

The plaintiffs’ amended complaint alleges that the conduct of West Pittston

Borough Council and the Mayor violated the plaintiffs’ liberty interest. As to this

claim, the only issue specifically contested by the defendant is whether the

plaintiffs’ amended complaint sufficiently alleges conscience shocking behavior,

as necessary to maintain a substantive due process claim.

The “exact degree of wrongfulness to reach the “conscious-shocking” level

depends on the circumstances of a particular case.” Vargas v. City of

Philadelphia, 783 F.3d 962, 973 (3d Cir. 2015). Courts must look at whether “the

behavior of a government officer is so egregious, so outrageous, that it may fairly

be said to shock the contemporary conscious.” Cnty of Sacramento v. Lewis, 523

Y.S. 833, 846 (1998). The Third Circuit has suggested that corruption or self-

dealing can constitute conscious-shocking conduct. See Eichenlaub v. Twp of

Indiana, 385 F.3d 274, 286 (3d Cir. 2004).

Here, the plaintiffs have alleged corrupt conduct by West Pittston Borough

Council and the Mayor. Specifically, the plaintiffs’ amended complaint alleges

that the policy and plan developed and implemented by Council and the Mayor

was to ensure that sufficient funding existed so that properties owned by

selectively notified and/or politically connected residents would be bought out

and to ensure that there was no reduction in the Borough’s real estate and

income tax base. (Doc. 19, Am. Compl. ¶¶ 110-111, 113-116).

Looking solely at the allegations of the complaint and accepting them as

true for the purposes of this motion, we agree that the plaintiffs have adequately

alleged conscious-shocking behavior and that the defendant’s motion to dismiss

plaintiffs’ substantive due process claim should be denied.

E. Equal Protection

In Count IV of plaintiffs’ complaint, plaintiffs allege a violation of equal

protection. Specifically, the complaint alleges that the defendant’s actions,

“through the improper Policy and plan developed and implemented by Council

and the Mayor, treated [plaintiffs] differently from others similarly situated.” (Doc.

19, Am. Compl. ¶ 120). Plaintiffs maintain that certain residents of West Pittston

Borough were made aware of the existence of the Project, but the plaintiffs were

not notified or made aware as required by the Project plan. (Id. ¶ 121). Defendant

West Pittston moves to dismiss this claim, arguing that the fact that some people

in West Pittston knew about the buyout program and some did not does not, on

its own, meet the standard for an Equal Protection claim.

The Equal Protection Clause of the Fourteenth Amendment instructs that

no state shall “deny to any person within its jurisdiction the equal protection of the

laws.” U.S. CONST. amend. XIV, § 1. The United States Supreme Court has

recognized that the Equal Protection Clause grants every person protection from

“intentional and arbitrary discrimination” by state agents. Village of Willowbrook v.

Olech, 528 U.S. 562, 564 (2000). In Village of Willowbrook v. Olech, the

Supreme Court outlined the “class-of-one” theory of equal protection, upon which

the plaintiffs here base their claim. Under a “class-of-one” claim, a plaintiff must

allege that he “has been intentionally treated differently from others similarly

situated and there is no rational basis for the difference in treatment.” Id. at 564.

As noted above, the plaintiffs have alleged that the official policy and

custom implemented by the Borough Council and Mayor was to ensure that

certain residents, including relatives of public officials, were made aware of the

existence of the Project to receive a buyout, while intentionally failing to inform

and mislead the plaintiffs with respect to the availability of funding under the

Project, all in furtherance of the plan and custom developed by Council and the

Mayor. We agree with the plaintiffs that this alleged conduct is enough to

demonstrate intentional disparate treatment. We therefore find, for the purposes

of defeating the defendant’s motion to dismiss, that the plaintiffs have pled

allegations of “irrational and wholly arbitrary treatment” to state a claim for relief.

See Carusone v. Kane, No. 1:16-CV-1944, 2017 WL 5188291, at *5 (M.D. Pa.

Nov. 9, 2017).

F. Writ of Mandamus

Count V of plaintiff’s complaint seeks a writ of mandamus. Specifically,

the plaintiff demands that West Pittston Borough buy out their property under the

Project and that the Borough “join in and/or consent to any and all applications

necessary for the plaintiffs’ participation in the FPA Program.” Defendant West

Pittston seeks dismissal of this count on the basis that the plaintiffs have an

adequate remedy at law, that being they could seek compensation for the

difference between the fair market value of their property and the amount that

they would have received from a buyout.

To be eligible for mandamus relief, a petitioner must demonstrate (1) that

he has a clear right to relief, (2) that the respondent's duty to perform the act in

question is plainly defined and peremptory, and (3) that he has no other

adequate remedy. See Cheney v. U.S. Dist. Court for Dist. of Columbia, 542 U.S.

367, 380-81 (2004) (“Mandamus is an extraordinary remedy, available to ‘a

plaintiff only if ... the defendant owes him a clear, non-discretionary duty.’ ”)

(citing Heckler v. Ringer, 466 U.S. 602, 612 (1984)). “The duty owed by the

government must be a legal duty which is a specific, plain ministerial act devoid

of the exercise of judgment or discretion. An act is ministerial only when its

performance is positively commanded and so plainly prescribed as to be free

from doubt.” Stark v. Holder, No. 11-CV-00003, 2011 WL 5593129 at *7 (M.D.

Pa. Nov. 17, 2011) (citing Mallard v. United States Dist. Ct. for the Southern Dist.

of Iowa, 490 U.S. 296, 309 (1989). We note that even where the burden is met

and the technical grounds for mandamus are satisfied, the law is clear that the

court has the discretion to deny the writ. Id.

Here, the plaintiffs contend that the issuance of a writ of mandamus

directing the defendant to properly discharge its duties by offering a buyout of

plaintiffs’ premises in accordance with the Project and/or to allow the plaintiffs to

participate in the Program is “wholly in accordance with the purpose of the writ.”

(Doc. 30, Pl.’s Br. in Opp’n at 31). As alleged by the plaintiffs, they have “the

clear right to (i) receive a ‘buyout’ of the premises pursuant to the Project; and/or

(ii) to participate in the FPA Program.” (Doc. 19, Am. Compl. ¶ 129). The

Project’s plan provides for nondiscretionary decisions by the defendant, making

them ministerial in nature. Finally, plaintiffs argue that the defendant has failed to

fulfill its duty in offering a buyout to the plaintiffs, despite plaintiffs’ protected

property interest, thereby making the issuance of a writ “clear and undisputable.”

(Id.)

While the plaintiffs’ allegations may satisfy the first two elements necessary

for mandamus relief eligibility, we find that the plaintiffs have not met the third

element: that there is no other adequate remedy available. The plaintiff has not

sufficiently explained why the extraordinary remedy of mandamus relief is

necessary. As pointed out by the defendant, monetary damages would be

available if the plaintiff prevails in this lawsuit, and the plaintiffs can seek

compensation for the difference between the fair market value of their property

and the amount that they would have received from a buyout.

As such, Count V of plaintiffs’ amended complaint for a writ of mandamus

will be dismissed.

II. Defendant Luzerne County Office of Community Development

On March 18, 2019, Defendant Luzerne County Office of Community

Development (“OCD”) filed its motion to dismiss the claims against it based on

the grounds set forth below.

A. Due Process

a. Failure to Take Advantage of Processes Available

First, Defendant OCD argues that the plaintiffs cannot adequately allege a

procedural due process claim against it because the plaintiffs failed to utilize the

process available to them prior to filing suit in federal court. According to the

defendant, the Plan contemplates a dispute resolution process for applicants who

believe that the determination of their eligibility status or funding award

calculation was incorrect, which involves a series of appeals. The defendant

contends that plaintiffs’ amended complaint fails to allege that they exhausted

that appeals process available to them.

In order to state a claim for failure to provide due process, the plaintiffs

must have taken advantage of the state procedural remedies that were available

to them, unless those processes were patently inadequate. Alvin v. Suzuki, 227

F.3d 107, 116 (3d. Cir. 2000). “A state ‘cannot be held to have violated due

process requirements when it has made procedural protection available and the

plaintiff has simply refused to avail himself of them.’” Id. (citing Dusanek v.

Hannon, 677 F.2d 538, 543 (7th Cir. 1982)). It is clear that a due process

violation “is not complete when the deprivation occurs; it is not complete unless

and until the State fails to provide due process.” Zinermon v. Burch, 494 U.S.

113, 126 (1990). As noted by the defendant, if there is a process on the books

that appears to provide due process, the plaintiff cannot skip that process and

use the federal courts as a means to get back what he wants. McDaniels v. Flick,

59 F.3d 446, 460 (3d Cir. 1995).

In response to the defendant’s argument, the plaintiffs contend that the

Plan’s dispute resolution process was applicable to applicants who believed their

funding award calculation or eligibility status was incorrect. The plaintiffs argue

that the process was not applicable to individuals like the plaintiffs who claim that

the defendants failed to follow the rules and regulations of the Plan in marketing

and notifying West Pittston Borough residents of the Plan itself. Thus, the

plaintiffs contend that there was no process available for them to exhaust.

After careful consideration, we agree with the plaintiffs on this issue.

Section 18.0 of the Plan describes the dispute resolution process that triggers “[i]f

the applicant believes that the program’s determination of their funding award

calculation or eligibility status is incorrect . . .” (Doc. 49, Def.’s Br. in Supp. at 6

(quoting Exh. “A” to the County’s Appendix at 81)). Plaintiffs are not challenging

their funding calculation or eligibility status; rather, they are challenging why they

were not made aware of the plan in the first place, a challenge not contemplated

by the plain language of the Plan. As such, we will deny the defendant’s motion

to dismiss for failure to take advantage of processes available.

b. Municipal Liability

Like Defendant West Pittston Borough, Defendant OCD also challenges

whether the plaintiffs have adequately alleged municipal liability. Defendant

OCD argues that the plaintiffs have failed to allege that an official policy of

Luzerne County violated their constitutional rights. Based on the case law and

analysis set forth thoroughly above, we find that the plaintiffs have, at this stage,

adequately alleged municipal liability as it relates to Defendant OCD.

Specifically, as the allegations relate to Defendant OCD, plaintiffs in their

amended complaint allege that the Plan set forth the policies and procedures by

which the OCD must administer the Project, including but not limited to outreach

strategies, citizen participation and order of priority funding. (Doc. 19, Am.

Compl. ¶ 22). The complaint further alleges that Defendant OCD through its

agents and employees knew that municipalities were “trying to keep the project

‘hush-hush’ because of the effect buyouts would have on their communities” and

that despite the mandatory compliance with the Plan, the OCD awarded funding

in a manner and method inconsistent with the procedures set forth by the Plan.

(Id. ¶ 47). According to the plaintiffs, OCD’s compliance with the Plan was not

discretionary, yet it failed to comply with the procedures set forth therein. (Id. ¶¶

81-87). At this preliminary stage, accepting these facts as true, we agree with

the plaintiffs that these allegations are enough to implicate Monell liability.

Additionally, we find that discovery may reasonably further reveal a specific

policy followed by Defendant OCD which resulted in the violation of the plaintiffs’

rights. We will deny the defendant’s motion to dismiss for failure to establish

Monell liability.

B. Procedural Due Process

Defendant OCD also challenges whether the plaintiffs have stated a claim

for procedural due process, once again contesting whether the plaintiffs have

demonstrated a protected property interest in the funds originating from the

Department of Housing and Urban Development under the Disaster Relief

Community Development Block Grant Program. Because we have fully

addressed the argument above and concluded that the plaintiffs have alleged a

protected property interest in the buyout funds, we will not re-address this issue.

Defendant OCD’s motion to dismiss plaintiffs’ procedural due process claim on

the grounds that the plaintiffs have not alleged a protected property interest will

be denied.

C. Writ of Mandamus

Like Defendant West Pittston Borough, Defendant OCD also argues for

dismissal of Count V, which is plaintiffs’ request for a writ of mandamus

ordering the defendant to buy out their property under the Project and/or to allow

the plaintiffs to participate in the FPA Program. Once again, we refer back to our

reasoning above for this issue. Because we find that the plaintiffs have not

shown that there is no other adequate remedy available for them, we find that

they are not entitled to mandamus relief. We will grant Defendant OCD’s motion

to dismiss Count V.

III. Individual Defendants

Finally, we address the motions to dismiss filed by the individual

defendants: Ellen Quinn, Judy Aita, James Butera, and Thomas Blaskiewicz.

Defendants Quinn, Aita, and Butera are members of the West Pittston Borough

Council. Defendant Blaskiewicz is the Mayor of West Pittston. Because the

substance of the motions are the same, we will address the merits together.

A. Claims against Defendants in their Personal/Official Capacities

We first note that plaintiffs’ amended complaint asserts claims against the

individual defendants in both their personal and official capacities. The individual

defendants contend that the claims against them in their official capacities should

be dismissed, as West Pittston Borough has already been named as a defendant

and the claims are therefore duplicative. The plaintiffs agree that so long as

West Pittston Borough is a defendant, the individual defendants should be

dismissed in their official capacities. Thus, we will dismiss the individual

defendants in their official capacities, and the remainder of these claims will be

discussed as they relate to the individual defendants’ personal capacities.

B. Qualified Immunity

Next, the individual defendants argue that they are protected from suit in

their personal capacities by the doctrine of qualified immunity. In Harlow v.

Fitzgerald, 457 U.S. 800, 102 (1982), the United States Supreme Court held “that

government officials performing discretionary functions generally are shielded

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.” Id. at 818. The United States Supreme Court in Saucier v. Katz,

533 U.S. 194, 121 (2001), subsequently established a two-part test for analyzing

qualified immunity claims. See also Curlev v. Klem, 298 F.3d 271 (3d Cir. 2002);

Bennett v. Murphy, 274 F.3d 133 (3d Cir. 2002). While this two-part test has

since been determined to be discretionary, the Court has noted that this analysis

process is often advantageous in “best facility[ing] the fair and efficient

disposition of each case. Pearson v. Callahan, 555 U.S. 223, 236 (2009).

The initial inquiry in a qualified immunity examination is whether “the facts

taken in the light most favorable to the plaintiff show a constitutional violation.”

Bennett, 274 F.3d at 136. The second prong requires a determination as to

whether the constitutional right at issue was clearly established. Id. A

determination that the conduct violated a clearly established constitutional right

precludes the granting of qualified immunity. Here, the defendants argue that

they “are at a loss” as to “what clearly established statutory or constitutional right

[they] knowingly violated.” (Doc. 44, Br. in Supp. at 18).

Qualified immunity should be upheld on a 12(b)(6) motion “only when the

immunity is established on the face of the complaint.” Leveto v. Lapina, 258 F.3d

156, 161 (3d Cir. 2001). The Third Circuit has cautioned that “it is generally

unwise to venture into a qualified immunity analysis at the pleading stage as it is

necessary to develop the factual record in the vast majority of cases.” Newland v.

Reehorst, 328 F.App’x. 788, 791 n.3 (3d Cir. 2009). It has likewise held that

when a “complaint failed to disclose whether the defendants’ actions did not

violate a clearly established constitutional right, dismissal on qualified immunity

grounds was premature.” Debrew v. Auman, 354 F.App’x. 639, 642 (3d Cir.

2009) (citing Thomas v. Independence Twp., 463 F. 3d 285, 291 (3d Cir. 2006)).

At this time, we agree with the plaintiffs that this is one of the “vast majority

of cases” in which a determination of qualified immunity is inappropriate at the

pleading stage. When viewing the facts in the plaintiffs’ amended complaint in

the light most favorable to the plaintiffs, the complaint does meet the bare

minimum standard in alleging that the defendants violated the plaintiffs’

constitutional rights by depriving them of a protected property interest.

Specifically, the complaint alleges that “[t]he actions of . . . Council and the Mayor

have deprived the Plaintiffs of the benefits to which they were entitled under the

plan and the Policy.” (Doc. 19, Am. Compl. ¶ 86). We acknowledge that

discovery may cast a new light on the qualified immunity analysis and whether

that right was clearly established, but at this stage we find that there is no reason

to necessarily believe that qualified immunity exists as a matter of law. We will

therefore deny the defendants’ motion to dismiss on the grounds of qualified

immunity without prejudice to the individual defendants’ right to reassert the

qualified immunity defense in a motion for summary judgment based on a more

fully developed record.

C. Section 1983 Claims

The plaintiffs bring the constitutional claims against the individual

defendants pursuant to 42 U.S.C. § 1983. To prevail on a § 1983 claim, the

plaintiffs must show first, that they were deprived of a constitutional right and

second, that the alleged deprivation was “committed by a person acting under a

color of state law.” Harvey v. Plains Twp. Police Dep’t., 421 F.3d 185, 189 (3d.

Cir. 2005). The individual defendants contend that even accepting plaintiffs’

allegations as true, selectively informing particular individuals about the buyout

was not an abuse of the individual defendants’ official positions. The defendants

argue that they were not acting under color of state law during the alleged

constitutional violations, as it was Defendant OCD that was responsible for

administering relief from the Plan.

A plaintiff must meet two elements to show that the defendants acted under

color of state law. First, he must allege that the constitutional deprivation

resulted from either: a) an exercise of a right or privilege having its source in

state authority; or b) a rule of conduct imposed by the state or a person for whom

the state is responsible. Lugar v. Edmonson Oil Co., 457 U.S. 922, 937 (1982).

Second, he must establish the defendants “could be described in all fairness” as

state actors. Brown v. Philip Morris Inc., 250 F.3d 789, 801 (3d Cir. 2001)

(quoting Edmonson v. Leesville Concrete Co., 500 U.S. 614, 620 (1991)).

On this issue, we agree that the plaintiffs have pled sufficient allegations to

support the proposition that the individual defendants were acting under color of

state law during the alleged constitutional deprivations. The amended complaint

alleges that the West Pittston Borough, “through a Policy and plan developed

and implemented by Council and the Mayor, intentionally failed to properly notify

the Project’s target audience, but rather selectively notified certain residents of

the availability of funding under the Project.” (Doc. 19, Am. Compl. ¶ 72).

Plaintiffs further allege that Borough residents “have been intentionally misled by

Borough officials at the discretion of [the individual defendants] with respect to

the availability of funding under the Project” and that the individual defendants

were “motivated by the desire to maintain the current tax base.” (Id. ¶¶ 75, 114).

We must, at this stage in the proceedings, view all allegations in the light

most favorable to the plaintiffs, and decline the defendants’ invitation to engage

in an analysis of the specific responsibilities of the individual defendants which

requires reviewing material outside of the pleadings. As such, we find that the

plaintiffs have adequately pled that the individual defendants were acting under

color of state law during the alleged constitutional violations.

D. Procedural Due Process

Like Defendant West Pittston Borough and Defendant OCD, the individual

defendants also challenge whether the plaintiffs have stated a claim for

procedural due process and argue that they do not have a protected property

interest in the funds originating from the Department of Housing and Urban

Development under the Disaster Relief Community Development Block Grant

Program. We again rely on our above-mentioned analysis, finding that the

plaintiffs have, at this stage, stated a claim for procedural due process. The

individual defendants’ motion to dismiss plaintiffs’ procedural due process claim

on the grounds that the plaintiffs have not alleged a protected property interest

will be denied.

E. Substantive Due Process

The individual defendants also move to dismiss plaintiffs’ substantive due

process claims against them. Once again, in the interest of brevity, we refer back

to our review of the relevant case law earlier in this memorandum. After a careful

review, we find that the plaintiffs have adequately pled substantive due process

claims against the individual defendants.

With regard to these defendants, the plaintiffs have alleged that the policy

and plan developed and implemented by the council members and the mayor

was to ensure that sufficient funding existed so that properties owned by the

selectively notified and/or politically connected residents would be bought out

and to ensure that there was no reduction in West Pittston Borough’s real estate

and income tax base. (Doc. 19, Am. Compl. ¶ 109). As we have explained

above, looking solely at the allegations of the complaint and accepting them as

true for the purposes of this motion, we agree that this conduct is sufficient to

adequately allege conscious-shocking behavior. As such, the individual

defendants’ motion to dismiss plaintiffs’ substantive due process claim will be

denied.

F. Equal Protection

Like Defendant West Pittston Borough, the individual defendants also move

to dismiss plaintiffs’ equal protection claim, arguing that the fact that some people

in West Pittston knew about the buyout program while others did not know about

the program does not, on its own, meet the standard for an equal protection

claim. The defendants acknowledge that they had an obligation to inform

citizens about the program but assert that because enough people knew of the

project to deplete the available funds and create a waiting list, they performed

their obligations despite the fact that people were not notified in the manner

prescribed by the plan.

Based on our analysis above, we find that the plaintiffs’ allegations that the

official policy and custom implemented by the Borough Council and Mayor was to

ensure that certain residents, including relatives of public officials, were made

aware of the existence of the Project to receive a buyout, while intentionally

failing to inform and mislead the plaintiffs with respect to the availability of

funding under the Project, is enough to demonstrate intentional disparate

treatment. Thus, we will deny the defendants’ motion to dismiss plaintiffs’ equal

protection claim.

G. Writ of Mandamus

Finally, like Defendant West Pittston Borough and Defendant OCD, the

individual defendants also argue for dismissal of plaintiffs’ request for a writ of

mandamus ordering the defendant to buy out their property under the Project

and/or to allow the plaintiffs to participate in the FPA Program. As noted above,

because we find that the plaintiffs have not shown that there is no other adequate

remedy available for them, we find that they are not entitled to mandamus relief.

We will dismiss Count V.

Conclusion

Accordingly, Defendant West Pittston Borough’s motion to dismiss will be

denied in part and granted in part. The motion will be denied as to Counts I, II,

III, and IV. The motion will be granted as to Count V. Defendant OCD’s motion

to dismiss will be denied in part and granted in part. The motion will be denied as

to Counts I and II. The motion will be granted as to Count V. Lastly, the

individual defendants’ motions also be denied in part and granted in part. The

motions will be denied as to Counts I, II, III, and IV. The motions will be granted

as to Count V. An appropriate order follows.

BY THE COURT:

Date: September 10, 2019 s/ James M. Munley

JUDGE JAMES M. MUNLEY

United States District Judge