Garanin v. City of Scranton

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

VSEVOLOD GARANIN, et al. : Civil No. 3:19-CV-1275

:

Plaintiffs, :

: (Magistrate Judge Carlson)

v. :

:

CITY OF SCRANTON, et al. :

:

Defendants. :

MEMORANDUM OPINION

I. Statement of Facts and of the Case

This is the second civil action before us filed by Vsevolod Garanin and his

associated entities against the City of Scranton and others. The defendants have now

moved to dismiss this lawsuit, or in the alternative, to combine it with Garanin’s

initial lawsuit, Civ. No. 3:14-cv-2129 (“Garanin I”), also pending before this court,

for ease of litigation. After review of these motions, we will grant them both in part.

The defendants’ motion to dismiss this case shall be granted as to Counts IV and

VII, denied as to Counts II, III, and VI, and granted in part and denied in part for

Counts I, V, and VIII. Likewise, the defendants’ alternative motion to consolidate

Garanin’s two cases shall be granted in part at this time solely for purposes of global

settlement discussions concerning both of Garanin’s lawsuits pending before this

court, and we will defer a decision regarding further consolidation of the cases for

trial pending the outcome of any mediation efforts.

In the eight-count complaint presently before us, Garanin sets forth several

claims under 42 U.S.C. § 1983 for violations of procedural and substantive due

process rights, equal protection, the First Amendment, and protections against

unreasonable searches and seizures. In addition, the complaint sets forth claims for

Monell liability, malicious prosecution, and tortious interference with existing and

prospective business and contractual relationships. These allegations are based on

the following facts which are derived from the plaintiffs’ complaint:

Plaintiff Garanin is a Scranton-area businessman, owning a controlling share

in Garanin Properties LLC, the parent company holding Auric Investment Holdings

LLC (“Auric”), Ferndrive LLC (“Ferndrive”), and Rock Property Holdings LLC

(“Rock Property”), the co-plaintiffs in this case. (Doc. 1, ¶¶ 1-5). These wholly-

owned subsidiaries own the properties which give rise to Garanin’s disputes in this

second complaint, including 300-302 William Street, 126-128 School Street, 614

Willow Street, and 1208-1210 Philo Street. (Id., ¶¶ 3-5). The defendants in this case

are William Courtright, the former mayor of the City of Scranton; Patrick Hinton,

the former Director of the City of Scranton’s Department of Licensing, Inspections,

and Permits; Lori Uher, the Officer of Rental Registration for the City’s Department

of Licensing, Inspections, and Permits; Tamilyn Carmona, a Code Enforcement

Officer for the City’s Department of Licensing, Inspections, and Permits; and the

City of Scranton. All defendants worked for the City during all pertinent portions of

the plaintiffs’ complaint.

According to the complaint, the defendants in this case condemned the

William Street property, held by Auric, for fear of a roof collapse despite the fact

that Auric had contracted to repair and replace the roof on the building pursuant to

a City-issued construction permit for same and had removed tenants from the top

floor of the two-story building. (Id., ¶¶ 20, 22, 24). Garanin, on behalf of Auric,

appealed this condemnation to the City of Scranton Housing Appeals Board. (Id., ¶

29). After its condemnation, and during the pendency of Auric’s appeal, the City

also allegedly instructed PPL to remove the four electric meters from the building

since it was not being occupied.1 (Id., ¶ 30). The Board held a hearing on the

condemnation on November 29, 2018. (Id., ¶ 31). Thereafter, on December 4, 2018,

the Board issued a decision upholding the City’s condemnation of the property. (Id.,

¶ 32). Garanin promptly appealed this determination to the Lackawanna County

Court of Common Pleas; this appeal remains pending as of the date of the filing of

this complaint. (Id., ¶¶ 33-34). In the interim, the City fined Auric multiple times for

prohibited occupancy and quality of life citations since there was still at least one

1 Contrary to this assumption, Garanin claims that there was at least one tenant

residing on the first floor of the building until February 23, 2019. (Id., ¶ 21).

tenant residing in the building, despite the ongoing appeals process, and the City’s

alleged refusal to remove the tenant from the building.2 (Id., ¶¶ 40-44). Garanin’s

attempts to remedy the situation, through Auric, were allegedly frustrated by the

City’s continual roadblocks, thus delaying and prolonging the reopening of the

building. (Id., ¶¶ 45-57). Similarly, Ferndrive’s School Street property remained

condemned by the City for an extended period of time, despite Garanin’s efforts and

compliance with all requirements and the defendants’ requests. (Id., ¶¶ 58-62).

With respect to Ferndrive’s Willow Street property, the City of Scranton’s

Department of Licensing, Inspections, and Permits allegedly received complaints

regarding the heating in the first-floor units. (Id., ¶ 63). Without conducting an

inspection to confirm the tenant complaints or providing notice or a hearing to

Ferndrive or Garanin, the defendants closed the property due to “unhealthy and

hazardous conditions.” (Id., ¶¶ 64-65, 71). After a delayed waiting period for a

hearing before the City of Scranton Housing Appeals Board to contest the closure,

the Board decided to uphold the City’s determination as to the property. (Id., ¶¶ 72-

76). On June 12, 2019, Ferndrive, via Garanin, filed an appeal of this decision with

2 Garanin alleges that he was unable to remove the tenants from occupancy since the

building had been condemned. Thus, “[o]nly law enforcement and / or the CITY

itself can remove the tenants of a condemned property if the condemnation order

stands.” (Doc. 1 ¶ 35).

the Lackawanna County Court of Common Pleas, which remained pending as of the

time the plaintiffs’ complaint was filed. (Id., ¶¶ 77-78).

Garanin, through Rock Property, lastly alleges that the Philo Street property

faced similar issues from the defendant. Specifically, on February 2, 2019,

Defendant Carmona condemned a unit in this property after UGI “red tagged the

furnace” therein without notice or a hearing provided to either Garanin or Rock

Property.3 (Id., ¶¶ 79, 88). Defendant Carmona did this despite the fact that a city-

licensed mechanical and plumbing contractor was allegedly en route to the building

on the same day. (Id., ¶¶ 86-87). Thereafter, Garanin, on behalf of Rock Property,

filed an appeal with the Board. (Id., ¶ 93). While this appeal was pending, Garanin

attempted to amicably resolve the problems necessary to reopen this unit by

scheduling an inspection with the City. Due to close deadlines with the Board of

Appeals hearing, Garanin requested a rescheduling of this inspection from

Defendant Hinton, who allegedly refused to allow a rescheduling after Garanin

turned down a settlement offer from the City. (Id., ¶¶ 116-24). Garanin was further

stymied when, after another delayed hearing before the Board, allegedly due to the

defendants’ actions, the Board decided to uphold Defendant Carmona’s decision to

3 Garanin notes that “it is a fairly common practice for UGI to red tag gas appliances

and provide the owner with notice and an opportunity to cure an alleged

infraction[,]” and that “by red tagging a furnace[,] any ‘immediate health and safety

risk’ is remedied by UGI instantaneously.” (Id., ¶¶ 80-81).

condemn the Philo Street property unit. (Id., ¶¶ 95-97). Rock Property appealed this

decision to the Lackawanna County Court of Common Pleas on June 13, 2019,

which remained pending at the time the plaintiffs filed their complaint in this case.

(Id., ¶ 98).

While the condemnation of this unit in the property was making its way

through the appeals process, Rock Property received notice that the entire Philo

Street property was out of compliance with the city’s rental ordinance and that a

rental registration payment was required. (Id., ¶¶ 100-01). Despite Rock Property

allegedly submitting this payment and confirming its receipt, Defendant Uher closed

the entire property on April 10, 2019 without notice to Rock Property or Garanin on

the grounds that the property still had not been registered. (Id., ¶¶ 102-04, 108). A

series of appeals followed which were largely reminiscent of the other plaintiffs’

experiences with the Board of Appeals; the Board opted to uphold the City’s

decision on May 16, 2019, and an appeal was pending with the Lackawanna County

Court of Common Pleas as of the time this complaint was filed. (Id., ¶¶ 113-14).

Lastly, Garanin generally alleges that he has been the subject of disparate

treatment from the defendants. (See id., ¶ 132). As support for this assertion, Garanin

claims that:

Specifically, on June 18, 2019 a permit was denied for the 1930 Bristol

Ct. property as owned by the Ethel M. Martinez due to non-payment of

rental registration fees. The property was not closed (Exhibit 40).

Once again, on June 19, 2019 a permit was denied for the 722 N. Main

Avenue property as owned by the Jewish Discovery Center Inc. due to

non-payment of rental registration fees, amongst other reasons. The

property was not closed (Exhibit 41).

On the contrary the GARANIN controlled WILLOW STREET

PORPERTY [sic] and the PHILO STREET PORPERTY [sic] were

closed.

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

The defendants respond to these factual averments with a motion to dismiss,

asserting privileges of qualified immunity and claiming that the plaintiffs have failed

to allege sufficient facts to include all named defendants in each count of the

complaint. The defendants alternatively move to consolidate the 2014 Garanin I case

and the present dispute for ease of litigation.

By way of background, Garanin has already filed a civil lawsuit with this court

in 2014 containing a similar factual landscape to the present complaint. Civ. No.

3:14-cv-2129. This 2014 matter is still pending before this court, the case having

been stayed pending resolution of criminal charges against Garanin in state court.

Garanin I is now set to proceed, fact discovery having concluded, and dispositive

motions having been filed. In fact, we have entered a case management order in this

case, scheduling it for trial in the Summer of 2020, and directing the parties to notify

us if they wish to pursue mediation by January 31, 2020. Thus, the 2014 matter and

the case at hand present themselves in distinctly different procedural postures, the

instant case having reached only the motion to dismiss stage. Given these differences

in procedural posture, despite the similar factual landscape, we find it appropriate to

grant the defendants’ alternative motion to consolidate these cases, in part, for

purposes of settlement discussions only at this time.

II. Discussion

A. Motion to Dismiss—Standard of Review

A motion to dismiss tests the legal sufficiency of a complaint. It is proper for

the court to dismiss a complaint in accordance with Rule 12(b)(6) of the Federal

Rules of Civil Procedure only if the complaint fails to state a claim upon which relief

can be granted. Fed. R. Civ. P. 12(b)(6). With respect to this benchmark standard for

legal sufficiency of a complaint, the United States Court of Appeals for the Third

Circuit has aptly noted the evolving standards governing pleading practice in federal

court, stating that:

Standards of pleading have been in the forefront of jurisprudence in

recent years. Beginning with the Supreme Court’s opinion in Bell

Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) continuing with our

opinion in Phillips [v. County of Allegheny, 515 F.3d 224, 230 (3d Cir.

2008)] and culminating recently with the Supreme Court’s decision in

Ashcroft v. Iqbal, BU.S.B, 129 S. Ct. 1937 (2009), pleading standards

have seemingly shifted from simple notice pleading to a more

heightened form of pleading, requiring a plaintiff to plead more than

the possibility of relief to survive a motion to dismiss.

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

In considering whether a complaint fails to state a claim upon which relief

may be granted, the court must accept as true all allegations in the complaint and all

reasonable inferences that can be drawn therefrom are to be construed in the light

most favorable to the plaintiff. Jordan v. Fox Rothschild, O’Brien & Frankel, Inc.,

20 F.3d 1250, 1261 (3d Cir. 1994). However, a court “need not credit a complaint’s

bald assertions or legal conclusions when deciding a motion to dismiss.” Morse v.

Lower Merion Sch. Dist., 132 F.3d 902, 906 (3d Cir. 1997). Additionally, a court

need not “assume that a . . . plaintiff can prove facts that the . . . plaintiff has not

alleged.” Associated Gen. Contractors of Cal. v. California State Council of

Carpenters, 459 U.S. 519, 526 (1983). As the Supreme Court held in Bell Atlantic

Corp. v. Twombly, 550 U.S. 544 (2007), in order to state a valid cause of action, a

plaintiff must provide some factual grounds for relief which “requires more than

labels and conclusions, and a formulaic recitation of the elements of a cause of

actions will not do.” Id. at 555. “Factual allegations must be enough to raise a right

to relief above the speculative level.” Id.

In keeping with the principles of Twombly, the Supreme Court has

underscored that a trial court must assess whether a complaint states facts upon

which relief can be granted when ruling on a motion to dismiss. In Ashcroft v. Iqbal,

556 U.S. 662 (2009), the Supreme Court held that, when considering a motion to

dismiss, a court should “begin by identifying pleadings that, because they are no

more than conclusions, are not entitled to the assumption of truth.” Id. at 679.

According to the Supreme Court, “[t]hreadbare recitals of the elements of a cause of

action, supported by mere conclusory statements, do not suffice.” Id. at 678. Rather,

in conducting a review of the adequacy of a complaint, the Supreme Court has

advised trial courts that they must:

[B]egin by identifying pleadings that because they are no more than

conclusions are not entitled to the assumption of truth. While legal

conclusions can provide the framework of a complaint, they must be

supported by factual allegations. When there are well-pleaded factual

allegations, a court should assume their veracity and then determine

whether they plausibly give rise to an entitlement to relief.

Id. at 679.

Thus, following Twombly and Iqbal, a well-pleaded complaint must contain

more than mere legal labels and conclusions; it must recite factual allegations

sufficient to raise the plaintiff’s claimed right to relief beyond the level of mere

speculation. As the United States Court of Appeals for the Third Circuit has stated:

[A]fter Iqbal, when presented with a motion to dismiss for failure to

state a claim, district courts should conduct a two-part analysis. First,

the factual and legal elements of a claim should be separated. The

District Court must accept all of the complaint’s well-pleaded facts as

true, but may disregard any legal conclusions. Second, a District Court

must then determine whether the facts alleged in the complaint are

sufficient to show that the plaintiff has a “plausible claim for relief.” In

other words, a complaint must do more than allege the plaintiff’s

entitlement to relief. A complaint has to “show” such an entitlement

with its facts.

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

As the court of appeals has observed: “The Supreme Court in Twombly set

forth the ‘plausibility’ standard for overcoming a motion to dismiss and refined this

approach in Iqbal. The plausibility standard requires the complaint to allege ‘enough

facts to state a claim to relief that is plausible on its face.’ Twombly, 550 U.S. at

570, 127 S. Ct. 1955. A complaint satisfies the plausibility standard when the factual

pleadings ‘allow[ ] the court to draw the reasonable inference that the defendant is

liable for the misconduct alleged.’ Iqbal, 129 S. Ct. at 1949 (citing Twombly, 550

U.S. at 556, 127 S. Ct. 1955). This standard requires showing ‘more than a sheer

possibility that a defendant has acted unlawfully.’ Id. A complaint which pleads facts

‘merely consistent with’ a defendant’s liability, [ ] ‘stops short of the line between

possibility and plausibility of “entitlement of relief.” ’ ” Burtch v. Milberg Factors,

Inc., 662 F.3d 212, 220-21 (3d Cir. 2011) cert. denied, 132 S. Ct. 1861, 182 L. Ed.

2d 644 (U.S. 2012).

In practice, consideration of the legal sufficiency of a complaint entails a

three-step analysis: “First, the court must ‘tak[e] note of the elements a plaintiff must

plead to state a claim.’ Iqbal, 129 S. Ct. at 1947. Second, the court should identify

allegations that, ‘because they are no more than conclusions, are not entitled to the

assumption of truth.’ Id. at 1950. Finally, ‘where there are well-pleaded factual

allegations, a court should assume their veracity and then determine whether they

plausibly give rise to an entitlement for relief.’ Id.” Santiago v. Warminster Twp.,

629 F.3d 121, 130 (3d Cir. 2010).

In considering a motion to dismiss, the court generally relies on the complaint,

attached exhibits, and matters of public record. Sands v. McCormick, 502 F.3d 263,

268 (3d Cir. 2007). The court may also consider “undisputedly authentic

document[s] that a defendant attached as an exhibit to a motion to dismiss if the

plaintiff’s claims are based on the [attached] documents.” Pension Benefit Guar.

Corp. v. White Consol. Indus., 998 F.2d 1192, 1196 (3d Cir. 1993). Moreover,

“documents whose contents are alleged in the complaint and whose authenticity no

party questions, but which are not physically attached to the pleading, may be

considered.” Pryor v. Nat’l Collegiate Athletic Ass’n, 288 F.3d 548, 560 (3d Cir.

2002); see also, U.S. Express Lines, Ltd. v. Higgins, 281 F.3d382, 388 (3d Cir. 2002)

(holding that “[a]lthough a district court may not consider matters extraneous to the

pleadings, a document integral to or explicitly relied upon in the complaint may be

considered without converting the motion to dismiss in one for summary

judgment”). However, the court may not rely on other parts of the record in

determining a motion to dismiss, or when determining whether a proposed amended

complaint is futile because it fails to state a claim upon which relief may be granted.

Jordan v. Fox, Rothschild, O’Brien & Frankel, 20 F.3d 1250, 1261 (3d Cir. 1994).

B. Qualified Immunity

Throughout their motion to dismiss, the defendants raise several challenges to

the plaintiffs’ complaint, including the allegation that they should be discharged

from this case on qualified immunity grounds. Recognizing that the Supreme Court

has voiced a preference for resolving questions of immunity at the earliest stage of

trial, Hunter v. Bryant, 502 U.S. 224, 227, 112 S. Ct. 534, 116 L.Ed.2d 589 (1991),

but finding that the questions before us involve immutably fact-bound

determinations, among other reasons as discussed below, we will deny these portions

of the defendants’ motion to dismiss without prejudice for the defendants to raise

again upon a more fulsome record.

Initially, it is well-settled that:

“[T]he qualified-immunity defense shields government agents from

liability for civil damages insofar as their conduct does not violate

clearly established statutory or constitutional rights of which a

reasonable person would have known.” Behrens v. Pelletier, 516 U.S.

299, 305, 116 S. Ct. 834, 133 L.Ed.2d 773 (1996) (internal quotation

marks, brackets, and citations omitted). An essential attribute of

qualified immunity is the “entitlement not to stand trial or face the other

burdens of litigation, conditioned on the resolution of the essentially

legal question whether the conduct of which the plaintiff complains

violated clearly established law.” Mitchell [v. Forsyth], 472 U.S. [511,

526, 105 S. Ct. 2806, 86 L. Ed. 2d 411 (1985)]. The immunity is

intended to protect officials from the potential consequences of suit,

including distraction from official duties, inhibition of discretionary

action, and deterrence of able people from public service. Id. “[E]ven

such pretrial matters as discovery are to be avoided if possible, as

‘[i]nquiries of this kind can be peculiarly disruptive of effective

government.’ ” Id. (quoting Harlow v. Fitzgerald, 457 U.S. 800, 817,

102 S. Ct. 2727, 73 L.Ed.2d 396 (1982)).

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

Because qualified immunity bestows immunity from suit, the Supreme Court

“repeatedly ha[s] stressed the importance of resolving immunity questions at the

earliest possible stage in litigation.” Hunter v. Bryant, 502 U.S. 224, 227, 112 S. Ct.

534, 116 L.Ed.2d 589 (1991). Yet, while questions of qualified immunity should be

resolved at the earliest possible stage of the litigation, it is also evident that some

qualified immunity questions are fact-specific and require consideration of matters

beyond the pleadings. Indeed, in many instances, “crucial to the resolution of [the]

assertion of qualified immunity is a careful examination of the record . . . to establish

. . . a detailed factual description of the actions of each individual defendant (viewed

in a light most favorable to the plaintiff).” Grant v. City of Pittsburgh, 98 F.3d 116,

122 (3d Cir. 1996). Given the highly fact-specific nature of certain qualified

immunity inquiries, some qualified immunity claims may not be readily amenable

to resolution at the outset of a case on a motion to dismiss.

In such instances:

When presented with a complaint that does not lend itself to an early

resolution of the qualified immunity issue, a district court has several

options. First, a district court may order the plaintiff to reply to the

defendant’s answer pleading qualified immunity. Crawford-El [v.

Britton], 523 U.S. 574, 598, 118 S. Ct. 1584, 140 L. Ed. 2d 759 (1998)].

Second, a district court may grant a defense motion for a more definite

statement under Rule 12(e) with respect to the conduct of which the

plaintiff complains. Id. The district court should avail itself of these

options before addressing the immunity question, which sometimes

requires complicated analysis of legal issues. Id. If the plaintiff’s action

survives these hurdles, the plaintiff ordinarily will be entitled to some

discovery, but the district court may limit the timing, sequence,

frequency, and extent of that discovery under Rule 26. Id. at 598-99.

Beyond these procedural tools, summary judgment remains a useful

tool for precluding insubstantial claims from proceeding to trial. Id. at

600.

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

In our view, two of these options, which lie in our discretion, have only limited

utility as a means for clarifying this complaint, which is challenged on qualified

immunity grounds. Oftentimes directing a litigant to endeavor to respond to a

qualified immunity claim by either requiring the plaintiff to: (1) reply to the

defendant’s answer pleading qualified immunity; or (2) granting a defense motion

for a more definite statement under Rule 12(e) with respect to whether the defendants

are entitled to qualified immunity have limited usefulness in addressing this defense.

Therefore, in many instances, the most fair and efficient means of addressing

qualified immunity issues which are not susceptible to quick resolution on a motion

to dismiss may be the third option endorsed by the courts: a prompt, and properly

documented, summary judgment motion.

In our view, these principles guide the course which we choose to follow in

this case. In this instance, both the plaintiffs’ complaint, and the defendants’ motion

to dismiss on qualified immunity grounds endeavor to characterize the actions and

motives of certain named defendants in relation to the plaintiffs’ properties. On this

score, the parties’ positions reflect a stark and irreconcilable conflict. Garanin views

these actions as bad faith, discriminatory and retaliatory actions. The defendants

insist that their conduct constituted a prudent response to public health and safety

concerns. On the pleadings alone, these disputes regarding motivation cannot be

addressed. These accounts present disparate descriptions of the events at issue in

the complaint and rely upon facts and evidence outside of the pleadings which we

are not in a position to weigh. Thus, we are invited to make a fact-specific

determination of qualified immunity in the procedural setting of a motion to dismiss

where we are enjoined from looking beyond the pleadings. We will therefore deny

the defendants’ motion to dismiss on qualified immunity grounds as to all counts in

the plaintiffs’ complaint without prejudice, subject to a timely motion for summary

judgment at a later stage in the proceedings. We will also address other, more pointed

issues of qualified immunity raised by the defendants as to the individual counts in

the plaintiffs’ complaint as they arise below, bearing in mind the fact-bound nature

of a qualified immunity defense.

B. The Defendants’ Motion to Dismiss Count I of the Plaintiffs’

Complaint for a Violation of the Plaintiffs’ Procedural Due Process

Rights is Granted in Part and Denied in Part Without Prejudice.

In Count I of their complaint, the plaintiffs have alleged that the defendants

violated their rights to procedural due process guaranteed by the Fourteenth

Amendment by condemning properties or units within the plaintiffs’ properties

without affording them either notice or a pre-deprivation hearing. The plaintiffs

likewise claim that they were issued citations for prohibited occupancy without

notice or a hearing. The defendants counter, primarily, that they are entitled to

qualified immunity on these procedural due process claims because pre-deprivation

notice is not required in cases involving exigent circumstances where a post-

deprivation remedy is available to an aggrieved property owner. The defendants

further maintain that the record establishes that the prohibited occupancy citations

were warranted since there were clearly individuals residing in the condemned

properties. Lastly, the defendants assert that the plaintiffs’ complaint is over-broad

in alleging that all named defendants are liable for conduct which, in the complaint,

only mentions some of the named defendants. Thus, these extraneous defendants

should be removed from liability for this count in this complaint. We address these

claims in the order raised.

It has long been settled law that where a state can feasibly provide a pre-

deprivation hearing before taking property, it generally must do so. See, e.g., Fuentes

v. Shevin, 407 U.S. 67, 80-84, 92 S. Ct. 1983, 32 L. Ed. 2d 556 (1972) (hearing

required before issuance of a writ allowing repossession of property). It is also true

that in some cases involving exigent circumstances requiring officials to act quickly,

a pre-deprivation hearing may be deemed unnecessary and in such cases the

existence of a post-deprivation remedy may be adequate to protect a property

owner’s due process interests. See Logan v. Zimmerman Brush Co., 455 U.S. 422,

436, 102 S. Ct. 1148, 71 L. Ed. 2d 265 (1982) (“ ‘[T]he necessity of quick action by

the State or the impracticality of providing any predeprivation process’ ” may mean

that a post-deprivation remedy is constitutionally adequate) (quoting Parratt v.

Taylor, 451 U.S. 527, 539, 101 S. Ct. 1908, 68 L. Ed. 2d 420 (1981); see also Hudson

v. Palmer, 468 U.S. 517, 104 S. Ct. 3194, 82 L. Ed. 2d 393 (1984) (holding that a

deprivation of a constitutionally protected property interest caused by a state

employee’s random, unauthorized conduct does not give rise to a § 1983 procedural

due process claim, unless the state fails to provide an adequate post-deprivation

remedy).

There is no question, therefore, that summary administrative enforcement

action may be taken in emergency situations. Where competent evidence allows an

official to reasonably believe that an emergency exists, discretionary invocation of

emergency procedures will only amount to a constitutional violation if the action is

arbitrary or an abuse of discretion. Elsmere Park Club, L.P. v. Town of Elsmere, 542

F.3d 412, 418 (3d Cir. 2008). “Where government officials are faced with a decision

in which a failure to act quickly could have serious health consequences, perfection

or near perfection is not the standard.” Id. at 420.

In this case, however, there is a fundamental factual dispute as to whether the

defendants reasonably could have believed that an actual emergency existed, since

the plaintiffs maintain that there is no evidence upon which the defendants could

have concluded that there was any danger to the life or health of any occupants of

their properties. Specifically, with respect to the plaintiffs’ William Street, Willow

Street, and Philo Street properties, all of which the defendants allegedly condemned

due to health and safety concerns, the plaintiffs claim that the alleged “imminent

roof collapse” in the William Street property consisted of mere wet ceiling tiles in

the first floor unit caused by an oversight from the roofers. Likewise, Garanin alleges

that the lack of heat in the Willow Street property was on its way to being addressed

on the same day it was closed, and the red-tagged furnace in the Philo Street property

posed no immediate danger as soon as UGI labeled it with the red tag. Should the

plaintiffs prove these well-pleaded facts, there would no longer be an emergent or

exigent circumstance to justify the condemnation of these properties without some

form of pre-deprivation process. Therefore, these factual disputes, in addition to our

already-established analysis on the issue of qualified immunity at this stage in the

proceeding, preclude a finding that the defendants are entitled to qualified immunity

on the plaintiffs’ procedural due process claims.

We thus move to the plaintiffs’ claim that they were issued citations for

prohibited occupancy without notice or a hearing. As we view it, this issue is

intertwined with the question of whether the defendants were justified in

condemning the properties in the first place. We have concluded that, if the plaintiffs

are able to prove that these condemnations lacked some form of exigency, they were

entitled to notice or a hearing before these properties were closed. We have also

found that there are factual disputes regarding whether the properties should not have

been condemned at all. It follows from these factual disputes that the subsequent

prohibited occupancy citations may have also been equally problematic since they

too were issued without notice or a hearing and assessed a monetary penalty on the

plaintiffs. Therefore, given the close connection between these fact-bound and

factually contested claims, we find that the defendants’ motion to dismiss is likewise

denied as to this claim.

Lastly, we address the defendants’ argument that certain named defendants

should be dismissed under Count I of the plaintiffs’ complaint since the plaintiffs

failed to allege any facts which mention or involve these defendants. Specifically,

the defendants claim that the plaintiffs fail to allege facts involving Defendants

Courtright and Uher as to the William Street property, Defendants Courtright and

Carmona as to the Willow Street Property, and Defendant Courtright as to the Philo

Street property. The plaintiffs appear to rejoin that Defendant Courtright, as the

mayor and ultimate decision maker for the City of Scranton, failed to prevent or

remedy these due process violations occasioned by city officials working under his

authority despite having notice from Garanin via May 23, 2019 letter, (see Doc. 1-

5, 35), that these violations were occurring and ongoing. The plaintiffs do not appear

to have a similar counter as to Defendants Uher and Carmona for the William and

Willow Street properties.

While we discern no direct reference to Defendant Uher in the plaintiffs’

complaint regarding the William Street property, to Defendant Carmona regarding

the Willow Street property, or to Defendant Courtright as to any of the

aforementioned properties, we note that the plaintiffs’ complaint is all-

encompassing, stating generally that the defendants prevented the reopening of their

properties and engaged in a continual pattern of harassment and delay with respect

to same. To the extent that these allegations are meant to include Defendants Uher,

Carmona, or Courtright, the plaintiffs should specifically state these facts and

allegations, noting how these defendants were involved in this alleged pattern of

conduct. Thus, we will grant the defendants’ motion to dismiss as to the plaintiffs’

claims in Count I as to Defendant Uher with respect to the William Street Property,

Defendant Carmona with respect to the Willow Street property, and Defendant

Courtright with respect to the William, Willow, and Philo Street properties. This

dismissal is without prejudice, however, to allow the plaintiffs to amend their

complaint accordingly, should these defendants be included in these claims within

Count I of the complaint.4

4 While this aspect of Garanin’s procedural due process claim is flawed, we

recognize that pro se plaintiffs should be afforded an opportunity to amend a

complaint before the complaint is dismissed with prejudice, see Fletcher-Hardee

C. The Defendants’ Motion to Dismiss Count II of the Plaintiffs’

Complaint for Fourteenth Amendment Substantive Due Process

Violations is Denied.

The Fourteenth Amendment provides, in part, that “no State [shall] deprive

any person of life, liberty, or property without due process of law . . . .” U.S. Const.

Amend. XIV, § 1. The legal standards governing substantive due process claims are

both familiar and exacting. In this context: “The Supreme Court has emphasized that

the ‘touchstone of due process’ is protection against arbitrary government action.

Government action is ‘arbitrary in the constitutional sense’ when it is ‘so egregious,

so outrageous, that it may fairly be said to shock the contemporary conscience.’ ”

L.R. v. Sch. Dist. of Philadelphia, 836 F.3d 235, 246 (3d Cir. 2016) (footnotes

omitted). Thus:

To establish a substantive due process claim, a plaintiff must prove the

particular interest at issue is protected by the substantive due process

clause and the government’s deprivation of that protected interest

shocks the conscience . . . . Deprivation violates due process only when

it shocks the conscience, which encompasses only the most egregious

official conduct . . . while the meaning of the [shocks the conscience]

standard varies depending upon factual context, merely alleging an

improper motive is insufficient, even where the motive is unrelated to

Corp. v. Pote Concrete Contractors, 482 F.3d 247, 253 (3d Cir. 2007), unless it is

clear that granting further leave to amend would be futile, or result in undue delay.

Alston v. Parker, 363 F.3d 229, 235 (3d Cir. 2004). In this case, the plaintiffs have

not directly alleged facts that would implicate the above-mentioned defendants in a

procedural due process claim. Nonetheless, out of an abundance of caution, and in

order to preserve the plaintiffs’ rights, this claim is dismissed without prejudice to

the plaintiffs attempting to amend this federal complaint to state a claim upon which

relief may be granted by including proper allegations against appropriate party-

defendants that meet the requirements of federal law.

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 F. App’x 213 (3d Cir. 2016). Thus, determining what shocks the conscience is

not a “precise” or technical exercise. Eichenlaub v. Twp. of Indiana, 385 F.3d 274,

285 (3d Cir. 2004). The Supreme Court has noted, however, that “conduct intended

to injure in some way unjustifiable by any government interest is the sort of official

action most likely to rise to the conscience-shocking level.” Lewis, 523 U.S. at 849.

In this case, the plaintiffs have alleged that the defendants have arbitrarily

condemned and subsequently delayed the release of the plaintiffs’ properties from

condemnation, refused to issue the permits necessary to operate these properties as

rental properties, and delayed access to the appeals process after these properties

were condemned. (See Doc. 1). The plaintiffs further allege that these delays are due

to a personal vendetta that the defendants have against the plaintiffs, since they

allegedly told the plaintiffs that their properties were “disgusting” and should be shut

down. (See id.) The defendants rejoin that the plaintiffs have failed to plead

sufficient facts to give rise to these serious allegations and that the complaint merely

sets forth conclusory allegations mirroring the requirements for a substantive due

process violation, rather than explicitly setting forth facts related to this claim. The

defendants also allege that there are insufficient facts to implicate Defendant

Courtright in this claim, and that he should accordingly be dismissed from this

action.

Although substantive due process claims must meet exacting standards of

proof, out of an abundance of caution and reading the allegations in the complaint

in the plaintiffs’ favor, we find that the plaintiffs’ substantive due process claim

should survive the defendants’ motion to dismiss. Recognizing that the plaintiffs’

complaint does allege a substantive due process claim in a conclusory fashion which

does not necessarily include all named defendants, we nonetheless note that the

incorporation of the previous paragraphs allows the plaintiffs to cobble together

what could be a valid substantive due process claim, if proven. These allegations

articulate a claim based on the alleged selective enforcement of local rules and codes

to suppress the plaintiffs’ business activity. Since we find that such an allegation

could support a substantive due process claim in this case, the plaintiffs’ claim set

forth in Count II will be permitted to proceed subject to further consideration of this

claim on a fully documented motion for summary judgment. The defendants’ motion

to dismiss this count is accordingly denied.

D. The Defendants’ Motion to Dismiss Count III of the Plaintiffs’

Complaint for Fourteenth Amendment Equal Protection

Violations is Denied.

The Equal Protection Clause of the Fourteenth Amendment directs that no state

shall “deny to any person within its jurisdiction the equal protection of the laws.”

U.S. Const. amend. XIV, § 1. The plaintiffs’ equal protection argument in this case

advances what is called a “class of one” claim—an assertion that the plaintiffs have

been treated differently than all others in some invidious fashion. On this score,

“cases have recognized successful equal protection claims brought by a ‘class of

one,’ where the plaintiff alleges that she has been intentionally treated differently

from others similarly situated and that there is no rational basis for the difference in

treatment.” Vill. of Willowbrook v. Olech, 528 U.S. 562, 564, 120 S. Ct. 1073, 1074,

145 L.Ed.2d 1060 (2000) (citing Sioux City Bridge Co. v. Dakota County, 260 U.S.

441, 43 S. Ct. 190, 67 L.Ed. 340 (1923); Allegheny Pittsburgh Coal Co. v.

Commission of Webster Cty., 488 U.S. 336, 109 S. Ct. 633, 102 L.Ed.2d 688

(1989)).

In order to sustain a “class of one” equal protection claim, “a plaintiff must

allege that (1) the defendant treated him differently from others similarly situated,

(2) the defendant did so intentionally, and (3) there was no rational basis for the

difference in treatment.” Hill v. Borough of Kutztown, 455 F.3d 225 (3d Cir. 2006).

Thus, a plaintiff must “at a minimum allege that he was intentionally treated

differently from others similarly situated by the defendant and that there was no

rational basis for such treatment.” Phillips v. Cty. of Allegheny, 515 F.3d 224, 243

(3d Cir. 2008). “[W]hen it appears that an individual is being singled out by the

government, the specter of arbitrary classification is fairly raised, and the Equal

Protection Clause requires a rational basis for the difference in treatment.” Yan v.

Penn State Univ., 2010 U.S. Dist. LEXIS 82812, *15 (M.D. Pa. 2010) (quoting

Engquist v. Oregon Dep’t of Agriculture, 553 U.S. 591, 128 S. Ct. 2146, 2152, 170

L. Ed. 2d 975 (2008) (internal citations and quotations omitted).

As to this first element—the requirement that the plaintiff be treated

differently from others similarly situated—it has been held that:

While “ ‘[p]ersons are similarly situated under the Equal Protection

Clause when they are alike in all relevant aspects,’ ” Mun. Revenue

Servs., Inc. v. McBlain, 347 Fed. App’x 817, 825 (3d Cir. 2009)

(quoting Startzell v. City of Phila., 533 F.3d 183, 203 (3d Cir. 2008)),

“the law in the Third Circuit does not require [the plaintiff] to show that

the [comparators] are identical in all relevant respects but only that they

are alike.” Southersby Dev. Corp. v. Borough of Jefferson Hills, 852 F.

Supp. 2d 616, 628 (W.D. Pa. 2012) (citing Startzell, 533 F.3d at 203);

see also Simmermon v. Gabbianelli, 932 F. Supp. 2d 626, 632-33

(D.N.J. 2013); Thomas v. Coopersmith, No. 11–7578, 2012 WL

3599415, at *5 (E.D. Pa. Aug. 21, 2012). “Determining whether an

individual is ‘similarly situated’ to another individual is a case-by-case

fact-intensive inquiry.” Chan v. Cnty. of Lancaster, No. 10–3424, 2011

WL 4478283, at *15 (E.D. Pa. Sept. 26, 2011) (citing Monaco v. Am.

Gen. Assurance Co., 359 F.3d 296, 305 (3d Cir. 2004)).

Borrell v. Bloomsburg Univ., 955 F. Supp. 2d 390, 405 (M.D. Pa. 2013).

Further, once a plaintiff has shown that he suffered some measure of disparate

treatment as compared to others who were similarly situated, in order to ultimately

prevail on a “class of one” equal protection claim:

[A] plaintiff must show that the differential treatment was “irrational

and wholly arbitrary.” Eichenlaub v. Twp. of Indiana, 385 F.3d 274,

286 (3d Cir. 2004) (quoting Olech, 528 U.S. at 564, 120 S. Ct. 1073)

(internal quotation marks omitted). “These challenges fail when ‘there

is any reasonably conceivable state of facts that could provide a rational

basis for the classification.’ ” Highway Materials, Inc. v. Whitemarsh

Twp., 386 Fed. App’x 251, 259 (3d Cir. 2010) (quoting Heller v. Doe,

509 U.S. 312, 320, 113 S. Ct. 2637, 125 L.Ed.2d 257 (1993)).

Tucker Indus. Liquid Coatings, Inc. v. Borough of E. Berlin, 85 F. Supp. 3d 803,

811 (M.D. Pa. 2015), aff’d, 656 F. App’x 1 (3d Cir. 2016).

This rational basis test imposes only a minimal burden of justification upon

those who are defending some government action. “[R]ational-basis review in equal

protection analysis ‘is not a license for courts to judge the wisdom, fairness, or

logic’ ” of government activity. Heller v. Doe by Doe, 509 U.S. 312, 319, 113 S. Ct.

2637, 125 L.Ed.2d 257 (1993) (quoting FCC v. Beach Comm’cns, Inc., 508 U.S.

307, 313, 113 S. Ct. 2096, 124 L.Ed.2d 211 (1993)). “These challenges fail when

there is any reasonably conceivable state of facts that could prove a rational basis

for the classification.” Giuliani v. Springfield Twp., 238 F. Supp. 3d 670, 705 (E.D.

Pa. 2017), aff’d, No. 17-1675, 2018 WL 1167524 (3d Cir. Mar. 6, 2018) (quoting

Hwy. Materials, 386 F. App’x at 259) (citations and quotation marks omitted).

Nonetheless, in order to defeat a “class-of-one” equal protection claim where the

plaintiff has sufficiently shown disparate treatment of similarly situated persons, it

is necessary that the court be able to articulate some rational justification for the

governmental action at issue in the lawsuit.

In this case, the plaintiffs have alleged that at least two other landlords in

Scranton received different treatment from the defendants when they were denied a

permit due to deficiencies in rental registration fees or faced other problems with

their properties. (Doc. 1, ¶¶ 133-35). Specifically, the plaintiffs claim that the

defendants did not close these other landlords’ properties despite their deficiencies

while the plaintiffs’ properties were closed down or condemned for similar

violations. (Id.) The plaintiffs classify these actions as arbitrary, capricious, and

without justification. For their part, the defendants assert that the plaintiffs have

failed to provide “any specific facts as to a violation of their collective rights under

the Equal Protection Clause, other than bare and conclusory language that the laws,

ordinances, policies and procedures were applied more onerously to them than to

other individuals and entities.” (Doc. 14, 17). The defendants also claim that the

plaintiffs have not alleged sufficient facts to implicate Defendant Courtright in this

claim and that he should accordingly be dismissed from this action. While the

plaintiffs’ allegations may be conclusory, the complaint, at a minimum, raises a

question regarding whether the defendants applied their policies or procedures in a

discriminatory or different fashion to the plaintiffs—including Defendant

Courtright. The plaintiffs have thus alleged specific instances of disparate treatment

as required by this Circuit,5 and that there was no rational basis for these specific

5 Prof’l Dog Breeders Advisory Council, Inc. v. Wolff, 752 F. Supp. 2d 575, 586

(E.D. Pa. 2010) (citing Conklin v. Warrington Twp., 304 Fed. App’x 115 (3d Cir.

2008) (claim dismissed where litigant provided no specific instance(s) of defendant

prothonotary handling any other litigant’s documents differently or treating them

differently otherwise); Young v. New Sewickley Twp., 160 F. App’x 263, 266 (3d

instances of disparate treatment. These allegations are sufficient at the pleading stage

of the litigation to state a claim upon which relief may be granted. Whether Garanin

can prove what he has alleged must await another day.

In contrast, we find that the defendants are silent on the issue of whether there

was some rational basis for treating the plaintiffs differently than other similarly

situated landlords as the plaintiffs have alleged. While proving the lack of a rational

basis for some government action is a daunting burden for the plaintiffs, and

suggesting some conceivable rational basis for governmental decision-making is an

extremely modest requirement for the defendants, at present, there is simply a legal

and factual void on this issue—a void which we should not endeavor to fill through

our own speculation. Therefore, we will deny this motion to dismiss without

prejudice to the submission of a more fulsome summary judgment motion by the

defendants addressing all of the elements of a “class-of-one” equal protection claim.

We note that denial of this motion by no means guarantees legal success to

the plaintiffs on this equal protection claim. Quite the contrary, it is well-settled that

government officials may draw distinctions between persons in land use matters,

Cir. 2005) (claim dismissed where disgruntled police officer failed to provide any

specific instance(s) of other police officer employees being treated in a dissimilar

manner); see also Perano v. Tilden Twp., No. 09-00754, 2010 U.S. Dist. LEXIS

36781, at *31-32 (E.D. Pa. Apr. 12, 2010) (claim dismissed where plaintiff failed to

adequately demonstrate how mobile home developers were similarly situated to high

end real estate developers or commercial businesses in the region, to ultimately

establish differential treatment)).

provided that these distinctions are not “irrational and wholly arbitrary.” Eichenlaub

v. Twp. of Indiana, 385 F.3d 274, 286 (3d Cir. 2004) (quoting Olech, 528 U.S. at

564, 120 S. Ct. 1073) (internal quotation marks omitted). Accordingly, “[t]hese

[‘class-of-one’ equal protection] challenges fail when ‘there is any reasonably

conceivable state of facts that could provide a rational basis for the classification.’ ”

Highway Materials, Inc. v. Whitemarsh Twp., 386 Fed. App’x 251, 259 (3d Cir.

2010) (quoting Heller v. Doe, 509 U.S. 312, 320, 113 S. Ct. 2637, 125 L.Ed.2d 257

(1993)); see Tucker Indus. Liquid Coatings, Inc. v. Borough of E. Berlin, 85 F. Supp.

3d 803, 811 (M.D. Pa. 2015), aff’d, 656 F. App’x 1 (3d Cir. 2016). The plaintiffs are

therefore cautioned that they face a high burden on this claim going forward.

E. The Defendants’ Motion to Dismiss Count IV of the Plaintiffs’

Complaint for First Amendment Retaliation Claims is Granted.

To state a First Amendment claim for retaliation, a plaintiff must allege that:

(1) he was engaged in constitutionally protected conduct; (2) he was retaliated

against by someone acting under color of state law in a way that was “sufficient to

deter a person of ordinary firmness from exercising his constitutional rights,” and

(3) there is a causal link between the protected conduct and the retaliatory action.

Thomas v. Independence Twp., 463 F.3d 285, 296 (3d Cir. 2006). Thus, “[t]he

threshold requirement is that the plaintiff identify the protected activity that

allegedly spurred the retaliation.” Eichenlaub v. Township of Indiana, 385 F.3d 274,

282 (3d Cir. 2004).

At the outset, we note that there is a certain enigmatic quality to the plaintiffs’

First Amendment claims. Specifically, the plaintiffs’ complaint alleges that:

The Defendants acted arbitrarily and in bad faith[] in retaliation for

Plaintiffs’ exercise of their First Amendment Rights to free speech and

to petition the government when the CITY:

improperly denied the permits to a GARANIN affiliated entity,

FERNDRIVE LLC, and thereby prevented repairs on the

SCHOOL STREET PROPERTY;

issued capricious citations for unauthorized occupancy on the

WILLIAM STREET PROPERTY while there is a pending

appeal;

and failed to reschedule the PHILO STREET PROPERTY

inspection even though the inspection fee had been paid and all

other requirements met.

The Defendants’ retaliatory actions violate the Plaintiffs’ First

Amendment rights to free speech and to petition the government.

(Doc. 1, ¶¶ 163-64). Based on the other portions of the plaintiffs’ complaint and

subsequent briefing on this motion, we gather that the plaintiffs’ retaliation claim is

based on “the initial filing of GARANIN I and [its] continued litigation” and the

pending appeals of the William Street property condemnation. (Doc. 17, 20). While

we find that the plaintiffs have established the first element of a First Amendment

retaliation claim, in that the plaintiffs have shown that they engaged in protected

activity by filing appeals with the courts, we do not discern either that the claimed

retaliation that the plaintiffs faced was “sufficient to deter a person of ordinary

firmness from exercising his constitutional rights,” or a causal link between the

protected conduct and the alleged retaliatory action taken by the defendants. Of

particular concern is that there is nothing in the plaintiffs’ complaint to link the

alleged retaliation in the form of disparate treatment from the defendants to the

plaintiffs’ engagement in the appeals process regarding their properties aside from

the plaintiffs’ conclusory statements.

Reading the complaint generously, as we must, the only allegation therein,

which, if true, could raise an inference of retaliatory conduct based solely on timing

is that Defendant Hinton refused to reschedule an inspection of the Philo Street

property after Garanin turned down a settlement offer from Hinton before the Board

of Appeals hearing on this property’s closure. This assertion, however, suffers from

ambiguities with the chain of events and causation. Specifically, the plaintiffs allege

that:

On April 29, Officer UHER advised GARANIN that ROCK

PROPERTY has to pay “$350 for inspection and $300 more for rental

fee” to have the PHILO STREET property reopened.

ROCK PROPERTY paid the $650 fee as requested by OFFICER

UHER with the inspection fee included.

On April 30, 2019, Officer UHER confirms that the inspection at the

PHILO STREET PROPERTY is scheduled for May 6, 2019 at

11:00AM (Exhibit 34).

GARANIN on behalf of ROCK PROPERTY requested for the CITY

to reschedule the inspection in light of the forthcoming Board of

Appeals hearing scheduled for May 16, 2019.

On May 16, 2019 immediately prior to the Board of Appeals hearing,

Director HINTON reached out to GARANIN offering a settlement and

confirming that the PHILO STREET PROPERTY’s inspection was

rescheduled.

On May 16, 2019 GARANIN and Director HINTON met to discuss

settlement terms.

GARANIN refused the settlement.

In retaliation, Director HINTON refused to grant the rescheduled

inspection for the PHILO STREET PROPERTY.

(Doc. 1, ¶¶ 117-24) (internal citations omitted); (see also Doc. 1-6, 12, 16, 19-20).

As it appears in the complaint, we are unsure of how Defendant Hinton could

have refused to reschedule an inspection before the Board of Appeals hearing on

May 16, 2019 when such inspection should have already been completed on May 6,

2016—ten days earlier. We garner some clarity on this score from the attached

exhibits to the plaintiffs’ complaint.6 In an email exchange between Garanin and

Defendant Uher, it appears as though an inspector had arrived at the Philo Street

property at the scheduled place and time on May 6, 2019, but that Garanin had turned

the inspector away under the impression that the inspection had been rescheduled.

(Doc. 1-6, 16, 19-20). Thus, we are faced with the ambiguity of whether Garanin’s

6 We may consider “undisputedly authentic document[s] that a defendant attaches as

an exhibit to a motion to dismiss if the plaintiff’s claims are based on the [attached]

document[s].” Pension Benefit Guar. Corp. v. White Consol. Indus., Inc., 998 F.2d

1192, 1196 (3d Cir. 1993). The defendants do not appear to raise any objection to

the use of these documents, so we consider them here.

refusal to settle before the Board of Appeals hearing on May 16, 2019, Garanin

turning away the initial inspector, or some other reason caused Defendant Hinton to

refuse to reschedule the inspection of the Philo Street property. We will not speculate

as to the cause of Defendant Hinton’s actions in this vague area of the plaintiffs’

pleadings. Therefore, absent a causal link between the protected conduct and the

retaliatory action, the defendants’ motion to dismiss the plaintiffs’ First Amendment

retaliation claim is granted, but simply note that the facts as alleged in the complaint

currently di onto give rise to a causal inference. The plaintiffs may have leave,

however, to amend their pleadings to clarify these ambiguities and to address all

elements of a First Amendment retaliation claim.7

F. The Defendants’ Motion to Dismiss Count V of the Plaintiffs’

Complaint for Fourth and Fourteenth Amendment Unreasonable

Search and Seizure Violations is Granted in Part and Denied in

Part.

Count V of the plaintiffs’ complaint asserts a violation of the Fourth and

Fourteenth Amendments to the U.S. Constitution for unreasonable search and

7 We reiterate that pro se plaintiffs should be afforded an opportunity to amend a

complaint before the complaint is dismissed with prejudice, see Fletcher-Hardee

Corp. v. Pote Concrete Contractors, 482 F.3d 247, 253 (3d Cir. 2007), unless it is

clear that granting further leave to amend would be futile, or result in undue delay.

Alston v. Parker, 363 F.3d 229, 235 (3d Cir. 2004). Out of an abundance of caution,

and in order to preserve the plaintiffs’ rights, this claim is dismissed without

prejudice to the plaintiffs attempting to amend their complaint to state a claim upon

which relief may be granted by including proper allegations against appropriate

party-defendants that meet the requirements of federal law, provided that the

plaintiffs acts within 21 days of the entry of any dismissal order.

seizure. In particular, the plaintiffs claim that “Inspector CARMONA’s constant

surveillance of the WILLIAM STREET PROPERTY and subsequent entry onto the

backyard of the WILLIAM STREET PROPERTY without a warrant or the owner’s

consent” and “[t]he CITY’s capricious and arbitrary denial of the permits on the

SCHOOL STREET PROPERTY and meritless refusal to lift the closure of the

WILLOW STREET PROPERTY and the PHILO STREET PROPERTY”

constituted an unreasonable search and seizure and de facto seizure, respectively.

(Doc. 1, ¶¶ 167-68). The defendants rejoin that no facts were alleged in the plaintiffs’

complaint to implicate Defendant Uher as to the William Street property, Defendants

Carmona and Uher as to the School Street property, Defendant Carmona as to the

Willow Street property, or Defendant Courtright as to all of the above-mentioned

properties. The defendants also claim that there is no factual support for the notion

that Defendant Carmona was on the plaintiffs’ William Street property, but that in

any event, she should be entitled to qualified immunity. Lastly, the defendants

generally reassert their entitlement to qualified immunity.

As we have previously discussed in Count I, while we discern no direct

reference to Defendant Uher in the plaintiffs’ complaint regarding the William Street

property, to Defendant Carmona and Uher regarding the School Street property, to

Defendant Carmona as to the Willow Street property, or Defendant Courtright as to

any of these properties, we note that the plaintiffs’ complaint is all-encompassing,

stating generally that the defendants prevented the reopening of the properties and

acted “intentionally, willfully, and recklessly to unlawfully implement the policies

and procedures of the CITY and deprive the Plaintiffs of their constitutional

rights[.]” (Doc. 1, ¶ 169). To the extent that these allegations are meant to include

Defendants Uher, Carmona, or Courtright, the plaintiffs should specifically state

these facts and allegations, including how these defendants were involved in this

pattern, in an amended complaint. Thus, we will grant the defendants’ motion to

dismiss the plaintiffs’ claims in Count V as to Defendants Uher and Courtright with

respect to the William Street Property, Defendants Carmona, Uher, and Courtright

with respect to the School Street property, and Defendants Carmona and Courtright

with respect to the Willow Street property.8

We thus move to the defendants’ second and third defenses that even if

Defendant Carmona was on the plaintiffs’ William Street property, she was entitled

to qualified immunity for her actions, and that the remaining defendants are likewise

entitled to qualified immunity on this Count. We reiterate our earlier conclusion that

8 While this claim is flawed, we recognize that pro se plaintiffs should be afforded

an opportunity to amend a complaint before the complaint is dismissed with

prejudice, see Fletcher-Hardee Corp. v. Pote Concrete Contractors, 482 F.3d 247,

253 (3d Cir. 2007), unless it is clear that granting further leave to amend would be

futile, or result in undue delay. Alston v. Parker, 363 F.3d 229, 235 (3d Cir. 2004).

While the plaintiffs have not directly alleged facts that would implicate the above-

mentioned defendants in this Fourth and Fourteenth Amendment claim, out of an

abundance of caution, and in order to preserve the plaintiffs’ rights, this claim is

dismissed without prejudice.

qualified immunity is unavailable to the defendants at this juncture due to factual

disputes which require us to look beyond the complaint and weigh differing factual

accounts and evidence, which are prevalent here. We do, however, take up the

question of whether Defendant Carmona’s alleged surveillance and trespass on the

William Street property violated the plaintiffs’ constitutional rights.

On this score, we restate the familiar principle that the Fourth Amendment to

the United States Constitution, as incorporated to the states through the Fourteenth

Amendment, protects against “unreasonable searches and seizures.” U.S. Const.

amend. IV. “Administrative searches, such as for code and zoning enforcement, can

constitute ‘significant intrusions upon the interests protected by the Fourth

Amendment . . . .’ ” Lease v. Fishel, No. 07-cv-0003, 2010 U.S. Dist. LEXIS 31837,

2010 WL 1390607, at *7 (M.D. Pa. Mar. 31, 2010) (citing Camara v. Mun. Court of

City and County of San Francisco, 387 U.S. 523, 534, 87 S. Ct. 1727, 18 L. Ed.2d

930 (1967)). The threshold inquiry for such a claim is whether the government’s

conduct amounted to a “search.” Id. (citing United States v. Hartwell, 436 F.3d 174,

177 (3d Cir. 2006)). A search occurs for Fourth Amendment purposes when “the

government violates a subjective expectation of privacy that society recognizes as

reasonable.” Kyllo v. United States, 533 U.S. 27, 33, 121 S. Ct. 2038, 150 L. Ed. 2d

94 (2001) (citing Katz v. United States, 389 U.S. 347, 361, 88 S. Ct. 507, 19 L. Ed.

2d 576 (1967) (Harlan, J., concurring)).

The Supreme Court has also taken up the question of the propriety of

administrative searches:

Though there has been general agreement as to the fundamental

purpose of the Fourth Amendment, translation of the abstract

prohibition against ‘unreasonable searches and seizures’ into workable

guidelines for the decision of particular cases is a difficult task which

has for many years divided the members of this Court. Nevertheless,

one governing principle, justified by history and by current experience,

has consistently been followed: except in certain carefully defined

classes of cases, a search of private property without proper consent is

‘unreasonable’ unless it has been authorized by a valid search warrant.

See, e.g., Stoner v. State of California, 376 U.S. 483, 84 S. Ct. 889, 11

L.Ed.2d 856; United States v. Jeffers, 342 U.S. 48, 72 S. Ct. 93, 96

L.Ed. 59; McDonald v. United States, 335 U.S. 451, 69 S. Ct. 191, 93

L.Ed. 153; Agnello v. United States, 269 U.S. 20, 46 S. Ct. 4, 70 L.Ed.

145. As the Court explained in Johnson v. United States, 333 U.S. 10,

14, 68 S. Ct. 367, 369, 92 L.Ed. 436:

‘The right of officers to thrust themselves into a home is also a

grave concern, not only to the individual but to a society which

chooses to dwell in reasonable security and freedom from

surveillance. When the right of privacy must reasonably yield to

the right of search is, as a rule, to be decided by a judicial officer,

not by a policeman or government enforcement agent.’

Camara v. Municipal Court of the City & County of San Francisco, 387 U.S. 523,

528-29, 87 S. Ct. 1727, 18 L.Ed.2d 930 (1967). Further, administrative searches

“authorized and conducted without a warrant procedure lack the traditional

safeguards which the Fourth Amendment guarantees to the individual[,]” and are

thus “significant intrusions upon the interests protected by the Fourth

Amendment[.]”

The Court qualified its decision, however, noting that:

[s]ince our holding emphasizes the controlling standard of

reasonableness, nothing we say today is intended to foreclose prompt

inspections, even without a warrant, that the law has traditionally

upheld in emergency situations. See North American Cold Storage Co.

v. City of Chicago, 211 U.S. 306, 29 S. Ct. 101, 53 L.Ed. 195, 6 Ohio

L. Rep. 665 (seizure of unwholesome food); Jacobson v.

Commonwealth of Massachusetts, 197 U.S. 11, 25 S. Ct. 358, 49 L.Ed.

643 (compulsory smallpox vaccination); Compagnie Francaise de

Navigation a Vapeur v. Louisiana State Board of Health, 186 U.S. 380,

22 S. Ct. 811, 46 L.Ed. 1209 (health quarantine); Kroplin v. Truax, 119

Ohio St. 610, 7 Ohio Law Abs. 110, 165 N.E. 498 (summary

destruction of tubercular cattle). On the other hand, in the case of most

routine area inspections, there is no compelling urgency to inspect at a

particular time or on a particular day. Moreover, most citizens allow

inspections of their property without a warrant. Thus, as a practical

matter and in light of the Fourth Amendment’s requirement that a

warrant specify the property to be searched, it seems likely that

warrants should normally be sought only after entry is refused unless

there has been a citizen complaint or there is other satisfactory reason

for securing immediate entry. Similarly, the requirement of a warrant

procedure does not suggest any change in what seems to be the

prevailing local policy, in most situations, of authorizing entry, but not

entry by force, to inspect.

387 U.S. at 539-40.

Against this legal backdrop, we face challenges with evaluating the plaintiffs’

claims, given the sparse factual allegations in the complaint regarding Defendant

Carmona’s interactions with the William Street property. At the outset, this

ambiguity pertains to the nature and extent of Defendant Carmona’s alleged

surveillance of the property, and thus, whether “the government violate[d] a

subjective expectation of privacy that society recognizes as reasonable.” Kyllo v.

United States, 533 U.S. 27, 33, 121 S. Ct. 2038, 150 L. Ed. 2d 94 (2001) (citing Katz

v. United States, 389 U.S. 347, 361, 88 S. Ct. 507, 19 L. Ed. 2d 576 (1967) (Harlan,

J., concurring)). For instance, if Defendant Carmona merely walked or drove down

William Street each day, or perhaps multiple times per day, while intentionally and

deliberately passing the plaintiffs’ property each time she did so, we would have no

grounds to find a constitutional violation since society neither expects nor anticipates

that the exterior of a property is private. However, if Defendant Carmona set up

cameras or recording devices inside this property, then we would have the kind of

violation cognizable under the constitution. Recognizing that neither extreme is

likely the case here, we note that there is a void in the complaint regarding precisely

which camp of surveillance was at issue. Given this ambiguity in Garanin’s

complaint, we will grant the motion to dismiss this aspect of the complaint, doing so

without prejudice to Garanin filing an amended complaint which alleges well-

pleaded facts describing how this alleged surveillance violated the plaintiffs’

constitutional rights.

In contrast, the plaintiffs’ claim for unreasonable seizure of their properties is

presented with fewer ambiguities. According to the Third Circuit:

The . . . proper standard for such alleged violations [is] as follows:

Under the Fourth Amendment, a “seizure” of property “occurs

when there is some meaningful interference with an individual’s

possessory interests in that property.” Soldal v. Cook Cnty., 506

U.S. 56, 61, 113 S. Ct. 538, 121 L.Ed.2d 450 (1992) (citation and

internal quotation marks omitted). “[S]eizures of property are

subject to Fourth Amendment scrutiny even though no search

within the meaning of the Amendment has taken place.” Id. at

68. This Fourth Amendment right against unreasonable seizure

is “transgressed if the seizure of [a person’s] house was

undertaken to . . . verify compliance with a housing regulation,

effect an eviction by the police, or on a whim, for no reason at

all.” Id. at 69.

Marcavage v. Borough of Lansdowne, Pa., 493 Fed. App’x 301, 307 (3d Cir. 2012)

(citing Marcavage v. Borough of Lansdowne, Pa., 826 F. Supp. 2d 732, 745 (E.D.

Pa. 2011)).

The plaintiffs’ complaint indicates that the closure of these properties

constituted an unreasonable seizure under the Fourth Amendment because it

interfered with their possessory interests in receiving rent from current or potential

tenants and because the actions of the defendants were arbitrary and capricious both

in imposing and subsequently refusing to lift these condemnations. These claims, if

proven could give rise to a cognizable claim under the Fourth Amendment, assuming

that these closures were meritless or “on a whim, for no reason at all.” Marcavage,

493 Fed. App’x at 307. The defendants’ motion to dismiss is thus denied on this

claim.

G. The Defendants’ Motion to Dismiss Count VI of the Plaintiffs’

Complaint for Monell Liability is Denied.

Count VI of the plaintiffs’ complaint sets forth a claim under 42 U.S.C. § 1983

for Monell liability under a failure to train theory. Consideration of the defendants’

corresponding motion to dismiss this count must take into account the substantive

legal standards which govern federal civil rights liability for municipalities. It has

long been established that municipalities and other local governmental entities or

officials may not be held liable under federal civil rights laws for the acts of their

employees under a theory of respondeat superior or vicarious liability. Ashcroft v.

Iqbal, 556 U.S. 662 (2009); see also Colburn v. Upper Darby Twp., 946 F.2d 1017,

1027 (3d Cir. 1991). However, they may be held liable “when execution of a

government’s policy or custom, whether made by its lawmakers or by those whose

edicts or acts may fairly be said to represent official policy, inflicts the injury that

the government as an entity is responsible under § 1983.” Monell v. Dep’t of Soc.

Servs., 436 U.S. 658, 694 (1978). To sustain a Monell municipal liability claim a

plaintiff must “identify a municipal ‘policy’ or ‘custom’ that caused the plaintiff’s

injury” to prevail. Bd. of County Comm’rs of Bryan County v. Brown, 520 U.S. 397,

403 (1997). This custom must be “so widespread as to have the force of law.” Id. at

404; see also Beck v. City of Pittsburgh, 89 F.3d 966, 971 (3d Cir. 1996) (a policy

is an official proclamation or edict of a municipality, while a custom is a practice

that is “so permanent and well settled as to virtually constitute law”) (quoting

Andrews v. City of Phila., 895 F.2d 1469, 1480 (3d Cir. 1990) (citations omitted).

The plaintiff must further “allege that a ‘policy or custom’ of [the defendants]

was the ‘moving force’ behind the [constitutional] violation.” Grayson v. Mayview

State Hosp., 293 F.3d 103, 107 (3d Cir. 2002) (citing Brown, 520 U.S. at 404). A

municipality can be held liable on the basis of failure to train when “that failure

amounts to ‘deliberate indifference . . . [of the constitutional] rights of persons. . . .’ ”

Woloszyn v. County of Lawrence, 396 F.3d 314, 324 (3d Cir. 2005) (citations

omitted). There must also be a causal nexus, in that the “ ‘identified deficiency in

[the] training program must be closely related to the ultimate [constitutional]

injury.’ ” Id. at 325 (citations omitted).

Thus, any analysis of a claim under Monell requires separate consideration of

two distinct issues: “(1) whether plaintiff’s harm was caused by a constitutional

violation, and (2) if so whether the [municipality] is responsible for that violation.”

Collins v. City of Harker Heights, Texas, 503 U.S. 115, 120 (1992). Thus, a

municipality or other local government may be liable under this section only if the

governmental body itself “subjects” a person to a deprivation of rights or “causes” a

person “to be subjected” to such deprivation. Connick v. Thompson, – U.S. –, 131

S. Ct. 1350, 1359 (2011); Monell, 436 U.S. at 692. However, under § 1983, local

governments are responsible only for “their own illegal acts,” and “are not

vicariously liable under § 1983 for their employees’ actions.” Connick, 131 S. Ct. at

1359. Accordingly, plaintiffs who seek to impose liability on local governments for

federal civil rights violations must prove that “action pursuant to official municipal

policy” caused the injury complained of. Id. (citing Monell, 436 U.S. at 691).

Guided by these threshold principles, the Third Circuit Court of Appeals has

further explained that there are “three situations where acts of a government

employee may be deemed to be the result of a policy or custom of the governmental

entity for whom the employee works, thereby rendering the entity liable under

§ 1983:”

The first is where the appropriate officer or entity promulgates a

generally applicable statement of policy and the subsequent act

complained of is simply an implementation of that policy. The second

occurs where no rule has been announced as policy but federal law has

been violated by an act of the policymaker itself. Finally, a policy or

custom may also exist where the policymaker has failed to act

affirmatively at all, [though] the need to take some action to control the

agents of the government is so obvious, and the inadequacy of existing

practice so likely to result in the violation of constitutional rights, that

the policymaker can reasonably be said to have been deliberately

indifferent to the need.

Natale v. Camden County Corr. Facility, 318 F.3d 575, 584 (3d Cir. 2003) (internal

quotation marks and citations omitted). Subsequently, the appeals court provided

further guidance regarding the ways in which a government policy or custom may

be established:

We have also observed that a government policy or custom can be

established in two ways. See Andrews v. City of Philadelphia, 895 F.2d

1469, 1480 (3d Cir. 1990). The plaintiffs may establish a government

policy by showing that a “decisionmaker possess[ing] final authority to

establish municipal policy with respect to the action” issued an official

statement of policy. Pembaur v. City of Cincinnati, 475 U.S. 469, 481,

106 S. Ct. 1292, 89 L.Ed.2d 452 (1986). The plaintiffs may establish

that a course of conduct constitutes a “custom” when, though not

authorized by law, “such practices of state officials [are] so permanent

and well settled” that they operate as law. Monell, 436 U.S. at 690, 98

S. Ct. 2018. In either instance, the plaintiffs have the burden of showing

that a government policymaker is responsible by action or acquiescence

for the policy or custom. Andrews, 895 F.2d at 1480. We have also held

that, at a minimum, the government must act with deliberate

indifference to the purported constitutional deprivation in order to

ground liability. San Filippo v. Bongiovanni, 30 F.3d 424, 445 (3d Cir.

1994).

Jiminez v. All American Rathskeller, Inc., 503 F.3d 247, 250 (3d Cir. 2007).

These general legal tenets apply with particular force to Monell claims based,

in part, upon an alleged failure to train public officials. Such claims survive only in

very compelling circumstances. As the Supreme Court explained in Connick, “[i]n

limited circumstances, a local government’s decision not to train certain employees

about their legal duty to avoid violating citizens’ rights may rise to the level of an

official government policy for purposes of § 1983.” Id. However, “[a] municipality’s

culpability for a deprivation of rights is at its most tenuous where a claim turns on a

failure to train.” Id.; Oklahoma City v. Tuttle, 471 U.S. 808, 822-823 (1985)

(plurality) (“[A] ‘policy’ of ‘inadequate training’ is “far more nebulous, and a good

deal further removed from the constitutional violation, than was the policy in

Monell”). Accordingly, in order to bring a viable claim for municipal liability under

§ 1983, “a municipality’s failure to train its employees in a relevant respect must

amount to ‘deliberate indifference to the rights of persons with whom the [untrained

employees] come into contact.” Id. (quoting City of Canton v. Harris, 489 U.S. 378,

388 (1989). Deliberate indifference is a stringent standard, and requires proof that a

municipality disregarded a known or obvious consequence of an omission in a

municipality’s training program. Id. “A pattern of similar constitutional violations

by untrained employees is ‘ordinarily necessary’ to demonstrate deliberate

indifference for purposes of failure to train.” Id. at 62 (quoting Bd. of County

Commn’rs of Bryan County v. Brown, 520 U.S. 397, 409 (1997)).

In cases where a plaintiff bases a Monell claim on an alleged failure to train

officers or other employees, the Third Circuit has further explained:

a . . . failure to train . . . only gives rise to a constitutional violation when

that failure amounts to deliberate indifference to the rights of persons

with whom the police come into contact. City of Canton, Ohio v. Harris,

489 U.S. 378, 388, 109 S. Ct. 1197, 103 L.Ed.2d 412 (1989). We have

held that a failure to train, discipline or control can only form the basis

for section 1983 municipal liability if the plaintiff can show both

contemporaneous knowledge of the offending incident or knowledge of

a prior pattern of similar incidents and circumstances under which the

supervisor’s actions or inaction could be found to have communicated a

message of approval to the offending subordinate. See Bonenberger v.

Plymouth Township, 132 F.3d 20, 25 (3d Cir. 1997).

Montgomery v. De Simone, 159 F.3d 120, 126-27 (3d Cir. 1998).

It is “only where a failure to train reflects a ‘deliberate’ or ‘conscious’ choice

by a municipality . . . can a city be liable for such a failure under § 1983.” Harris,

489 U.S. at 389. Thus, where Monell claims are based upon an alleged failure to

train officers, the municipality’s training program must be so inadequate that “in

light of the duties assigned to specific officers or employees the need for more or

different training is so obvious, and the inadequacy [of the current training] so likely

to result in the violation of constitutional rights, that the policy makers of the city

can reasonably be said to have been deliberately indifferent to the need.” Id. at 390.

“Establishing municipal liability on a failure to train claim under § 1983 is

difficult.” Reitz v. Cnty. of Bucks, 125 F.3d 139, 145 (3d Cir. 1997).

Generally, deficient training can only amount to the requisite deliberate

indifference “where the failure to train has caused a pattern of

violations.” Berg v. County of Allegheny, 219 F.3d 261, 276 (3d Cir.

2000). However, an exception exists and a “failure to train” Monell

claim may proceed absent a pattern of violations only where (1) “a

violation of federal rights may be a highly predictable consequence of

a failure to equip . . . officers with specific tools [or skills] to handle

recurrent situations,” and (2) the likelihood of recurrence and

predictability of the violation of a citizen’s rights “could justify a

finding that [the] policymakers’ decision not to train an officer reflected

‘deliberate indifference’ to the obvious consequence of the

policymakers’ choice—namely, a violation of a specific constitutional

or statutory right.” Kline, 255 Fed. App’x at 629 (quoting Board of

County Commissioners of Bryan County v. Brown, 520 U.S. 397, 409,

117 S. Ct. 1382, 1391 137 L.Ed.2d 626, 642 (1997)).

White v. Brommer, 747 F. Supp. 2d 447, 463 (E.D. Pa. 2010).

Yet while Monell failure-to-train claims must meet exacting legal standards,

it is also important to note that this court is required to liberally construe a pro se

plaintiff’s pleadings; “however inartfully pleaded,” the “allegations of [a] pro se

complaint [are held] to less stringent standards than formal pleadings drafted by

lawyers.” Haines v. Kerner, 404 U.S. 519, 520, 92 S. Ct. 594, 30 L.Ed.2d 652 (1972).

In doing so, the court is to “apply the applicable law irrespective of whether a pro se

litigant has mentioned it by name.” Higgins v. Beyer, 293 F.3d 683, 687 (3d Cir.

2002). Nevertheless, a court need not credit a plaintiff’s “bald assertions” or “legal

conclusions.” Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 906 (3d Cir. 1997).

It is against these legal benchmarks that we assess the instant motion to

dismiss. Initially, the plaintiffs must identify the specific policies or customs which

have given rise to their constitutional violations, rather than generally concluding or

alleging that such violations have occurred. Upon review, the plaintiffs have failed

to provide any direct reference to a specific policy or custom of the defendants which

would have caused these constitutional violations described in the plaintiffs’

complaint. Were this a counseled complaint, we would find this omission fatal to the

plaintiffs’ claim. Mindful, however, of the fact that these plaintiffs proceed pro se,

and that we are thus enjoined to liberally construe their pleadings, we gather from

the complaint and its accompanying documents that the plaintiffs intend to proceed

under a failure to train theory of liability. Specifically, it appears that Garanin’s

complaint, read as a whole, alleges that the defendants failed to train employees or

officials that either notice or a hearing is required before closing or condemning

personal property, unless in the case of a true emergency. Construed in this fashion,

we find that the causal nexus between the identified deficiency in the defendants’

training program and the ultimate constitutional injury is clear: by not training

employees and officials that a pre-deprivation notice or hearing is required,

employees and officials condemned and closed properties without notice or a

hearing. This having been established, we move to a discussion of whether we are

presented with a “pattern of similar constitutional violations by untrained

employees[,]” Connick, 563 U.S. at 62, which would establish deliberate

indifference on the part of the City.

Plainly from the plaintiffs’ complaint, they have alleged a pattern of

constitutional violations, asserting that the defendants closed and condemned at least

four of the plaintiffs’ properties without either notice or a hearing under the guise

that there was a public health or safety risk associated with each of these properties—

which the plaintiffs vehemently deny. After these closures, the plaintiffs attempted

to resolve the issues that caused the defendants to close their properties, and

consistently requested that the defendants provide either notice or a hearing

regarding these issues before the defendants took action to close or condemn

properties in the future. According to the plaintiffs, these requests were ignored.

Moreover, the plaintiffs, via Garanin, wrote a letter to Mayor Courtright advising

him of these ongoing violations and requesting that he do something to remedy the

situation. This letter likewise went allegedly unanswered. We find these collective

allegations sufficient to set forth a claim of deliberate indifference on the part of all

Defendants for purposes of this motion to dismiss. We will, therefore, deny the

motion to dismiss on this count, doing so without prejudice to the defendants raising

the issue again in a later motion for summary judgment on a more complete factual

record.

H. The Defendants’ Motion to Dismiss Count VII of the Plaintiffs’

Complaint for Malicious Prosecution is Granted.

In Count VII of the plaintiffs’ complaint, they allege a claim for malicious

prosecution under 42 U.S.C. § 1983. (Doc. 1, ¶ 11, see generally Count VII). In order

to establish and ultimately prevail on a § 1983 claim for malicious prosecution, a

plaintiff must show:

(1) the defendants initiated a criminal proceeding;

(2) the criminal proceeding ended in the plaintiff’s favor;

(3) the proceeding was initiated without probable cause;

(4) the defendants acted maliciously or for a purpose other than

bringing the plaintiff to justice; and

(5) the plaintiff suffered a deprivation of liberty consistent with the

concept of seizure as a consequence of a legal proceeding.

Estate of Smith v. Marasco, 318 F.3d 497, 521 (3d Cir. 2003).

In DiBella v. Borough of Beachwood, 407 F.3d 599 (3d Cir. 2005), the Third

Circuit explained that a plaintiff bringing a claim for malicious prosecution under

the Fourth Amendment must demonstrate a seizure as a fundamental element of the

claim because “prosecution without probable cause is not, in and of itself, a

constitutional tort.” Id. at 603 (quoting Gallo v. City of Philadelphia, 161 F.3d 217,

222). Indeed, “[t]he type of constitutional injury the Fourth Amendment is intended

to redress is the deprivation of liberty accompanying prosecution, not prosecution

itself.” Id. As examples of the kinds of seizures that may support a claim for

malicious prosecution, the Third Circuit observed that “[p]retrial custody and some

onerous types of pretrial, non-custodial restrictions constitute a Fourth Amendment

seizure.” Id. In contrast, the mere attendance at one’s trial on criminal charges does

not qualify as a seizure that will support a claim for malicious prosecution. Id. Thus,

constitutional false arrest and malicious prosecution claims often focus on the

physical restraint of a person.

In this case, we see no evidence on the pleadings before us to meet the fifth

and final element of this claim. The plaintiffs appear to argue that they were

constitutionally deprived of the William Street property after it was condemned by

the defendants and that this deprivation should meet the constitutional standard for

a malicious prosecution claim in a § 1983 action. The plaintiffs misconstrue the

requirements for this element. Merely depriving the plaintiffs of access to their

property is not the kind of seizure contemplated by the Fourth Amendment. Indeed,

we reiterate that examples of the kinds of seizures that may support a claim for

malicious prosecution under the Fourth Amendment include personal “[p]retrial

custody and some onerous types of pretrial, non-custodial restrictions.” DiBella, 407

F.3d at 603. There are no factual averments before us that any plaintiffs were

arrested, detained, or subject to “some onerous types of pretrial non-custodial

restrictions,” id., other than having to defend these actions. Thus, the plaintiffs have

failed to meet their burden on this score, and the defendants’ motion to dismiss this

claim is granted without prejudice to the plaintiffs amending their complaint within

the timeframe prescribed.9

I. The Defendants’ Motion to Dismiss Count VIII of the Plaintiffs’

Complaint for Tortious Interference with Existing and Prospective

Business and Contractual Relations is Granted in Part and Denied

in Part.

Count VIII of the plaintiffs’ complaint sets forth a claim for tortious

interference with existing and prospective business and contractual relationships.

Under Pennsylvania law, the elements for this claim are as follows:

(1) the existence of a contractual, or prospective contractual relation

between the complainant and a third party;

9 The plaintiffs argue for the first time in their brief that they bring this malicious

prosecution claim not under federal law, but under Pennsylvania’s malicious

prosecution statute, 42 Pa. C.S. § 8351, which is substantially similar to a federal

law claim, absent the fifth and final element. Merkle v. Upper Dublin Sch. Dist., 211

F.3d 782, 791 (3d Cir. 2000); Henderson v. City of Phila., 853 F. Supp. 2d 514, 518

(E.D. Pa. 2012). We cannot consider this claim through this legal lens, however,

since it is well-settled that a plaintiff cannot amend a complaint through the filing of

a brief, or through arguments set forth in a brief opposing a dispositive motion.

Indeed, “[i]t is axiomatic that the complaint may not be amended by the briefs in

opposition to a motion to dismiss.” Pennsylvania ex rel. Zimmerman v. Pepsico,

Inc., 836 F.2d 173, 181 (3d Cir. 1988) (quoting Car Carriers, Inc. v. Ford Motor Co.,

745 F.2d 1101, 1107 (7th Cir. 1984)); cf. Frederico v. Home Depot, 507 F.3d 188,

202 (3d Cir. 2007) (“[W]e do not consider after-the-fact allegations in determining

the sufficiency of [a] complaint under Rules 9(b) and 12(b)(6).”). Accordingly, we

will allow the plaintiffs leave to amend their complaint to either allege facts

sufficient to meet their burden for this claim under federal law, or to set forth a claim

for malicious prosecution under Pennsylvania law.

(2) purposeful action on the part of the defendant, specifically intended

to harm the existing relation, or to prevent a prospective relation from

occurring;

(3) the absence of privilege or justification on the part of the defendant;

and

(4) the occasioning of actual legal damage as a result of the defendant’s

conduct.

Pelagatti v. Cohen, 370 Pa. Super. 422, 536 A.2d 1337, 1343 (Pa. Super. 1988), app.

denied, 548 A.2d 256 (Pa. 1988). The Pennsylvania Supreme Court has clarified that

a prospective contractual relation “is something less than a contractual right,

something more than a mere hope.” Thompson Coal Co. v. Pike Coal Co., 412 A.2d

466, 471 (Pa. 1979).

As to these state law claims, we find that the plaintiffs have alleged sufficient

facts to survive the defendants’ motion to dismiss. The plaintiffs claim that they

invested in the properties at issue through initial purchases and renovations with the

expectation of making a profit from them through rental income and contracts with

present and future tenants. In fact, the plaintiffs had existing leases with tenants who

were living in these properties at the time they were either closed or condemned. By

condemning or closing these properties and issuing citations for prohibited use when

tenants continued to reside in the properties, the defendants interfered with these

relationships, specifically intending to end the leases and remove the existing tenants

from occupancy. Whether the defendants had a privilege to do so is a question of

fact which calls us to consider matters outside the pleadings and to weigh evidence

which we may not do on a motion to dismiss. Thus, at a minimum, the plaintiffs

have raised a dispute of fact regarding whether the defendants were privileged to

interfere with these relationships. Lastly, the plaintiffs have alleged legal damage as

a result of the defendants’ conduct in the form of lost profits and an impaired

reputation since their properties were condemned and closed. This claim therefore

survives the defendants’ motion to dismiss. We deny this motion without prejudice,

however, to the defendants renewing it upon a more detailed factual record in a

properly raised motion for summary judgment.

The defendants last assert that the plaintiffs failed to allege sufficient facts to

implicate Defendant Courtright in this claim and that he should accordingly be

dismissed from this claim. While we discern no direct reference to Defendant

Courtright in the plaintiffs’ complaint regarding these claims, we note that the

plaintiffs’ complaint is all-encompassing, stating generally that the defendants

engaged in a continual pattern of interference with the plaintiffs’ rental business. To

the extent that these allegations are meant to include Defendant Courtright, the

plaintiffs should specifically state these facts and allegations, noting how these

defendants were involved in this pattern. Thus, we will grant the defendants’ motion

to dismiss Defendant Courtright as to the plaintiffs’ claims in Count VIII without

prejudice to Garanin attempting to file an amended complaint which set forth well-

pleaded facts implicating this defendant in wrongful conduct.

J. The Defendants’ Motion to Dismiss the Plaintiffs’ Punitive

Damages Claims is Granted in Part and Denied in Part.

The defendants argue that punitive damages are inappropriate as to the City

of Scranton and the remaining defendants both in their official and individual

capacities. While appearing to concede that their claims against the City and the

defendants in their official capacity cannot stand, the plaintiffs instead counter that

they have alleged sufficient facts to justify their punitive damages claims against the

defendants in their individual capacities. We agree with the plaintiffs.

As to the City of Scranton and the Defendants in their official capacity, the

law is clear that a punitive damages claim cannot stand. City of Newport v. Fact

Concerts, Inc., 453 U.S. 247, 271, 101 S. Ct. 2748, 2762, 69 L.Ed.2d 616 (1981) (It

is well-settled that “a municipality is immune from punitive damages under 42

U.S.C. § 1983.”). Thus, this punitive damage claim as to these defendants is

dismissed.

Although punitive damages are not available against the municipal entity and

against the defendants in their official capacity, plaintiffs may seek punitive damages

against defendants in their individual capacity. “In order to obtain such damages,

[the] plaintiff[s] must establish facts of record that prove that the individuals

knowingly and maliciously deprived [the] plaintiffs of their civil rights.” Ruiz v.

Philadelphia Hous. Auth., 1998 U.S. Dist. LEXIS 3925 CIV. No. 96-7853, 1998 WL

159038, at *10 (E.D. Pa. March 17, 1998). The Third Circuit has stated that

for a plaintiff in a § 1983 case to qualify for a punitive award, the

defendant’s conduct must be, at a minimum, reckless or callous.

Punitive damages might also be allowed if the conduct is intentional or

motivated by evil motive, but the defendant’s action need not

necessarily meet this higher standard.

Savarese v. Agriss, 883 F.2d 1194, 1204 (3d Cir. 1989) (citing Smith v. Wade, 461

U.S. 30, 56, 103 S. Ct. 1625, 75 L. Ed. 2d 632 (1983).

Further, because the question of whether punitive damages are proper often

turns on the defendants’ state of mind, this question frequently cannot be resolved

on the pleadings alone, but must await the development of a full factual record at

trial. See generally In re Lemington Home for the Aged, 777 F.3d 620, 631 (3d Cir.

2015). Therefore, where a plaintiff’s right to punitive damages may turn on the

significance afforded to disputed factual questions, defendants are not entitled to a

judgment in their favor on the plaintiff’s punitive damages claims as a matter of law

at the outset of this litigation. See Burke v. TransAm Trucking, Inc., 605 F. Supp.

2d 647, 649 (M.D. Pa. 2009); Garden State Tire Realty Corp. v. R.K.R. Hess

Assocs., Inc., 762 F. Supp. 92, 93 (M.D. Pa. 1990).

In this case, the question of whether the plaintiffs can sustain individual

capacity punitive damage claims entails a consideration of factual matters beyond

the pleadings, and may not be undertaken through a motion to dismiss. Thus, to the

extent that the defendants seek dismissal of punitive damages claims against them

in their individual capacity, these requests are denied without prejudice, subject to a

proper motion for summary judgment on a complete factual record.

K. The Defendants’ Alternative Motion to Consolidate is Granted in

Part and Denied in Part.

The defendants have also moved the Court to consolidate both of the actions

identified above on the grounds that each of these cases arose out of the same alleged

incidents, occurred during roughly the same time, in the same place, and involves

the same defendants. As a result, the defendants contend that each of these actions

involve the same facts and common legal questions, and that any relief accorded in

one suit will directly affect and possibly control the relief accorded in the other suit.

In addition, the defendants submit that consolidation of these actions is desirable

because it will avoid the need to manage multiple lawsuits, will therefore conserve

judicial resources, and will reduce costs that would otherwise be incurred by all

parties.

Rule 42(a) of the Federal Rules of Civil Procedure provides that “[i]f actions

before the court involve a common question of law or fact, the court may: . . . (2)

consolidate the actions.” Fed. R. Civ. P. 42(a). Accordingly, a threshold requirement

for consolidation is whether there exists a common question of law or fact. In re

Consol. Parlodel Litig., 182 F.R.D. 441, 444 (D.N.J. 1998). Although the existence

of common issues is a prerequisite for consolidation, the mere fact that multiple

actions involve common issues of fact or law does not compel consolidation. Liberty

Lincoln Mercury, Inc. v. Ford Mktg. Corp., 149 F.R.D. 65, 80 (D.N.J. 1993). Rather,

a court may consolidate cases if, in its discretion, “consolidation would facilitate the

administration of justice.” Waste Distillation Tech., Inc. v. Pan Am. Resources, Inc.,

775 F. Supp. 759, 761 (D. Del.1991).

A district court has broad power and discretion when determining whether

consolidation is appropriate. Liberty Lincoln Mercury, 149 F.R.D. at 80. In the

exercise of this discretion, a court should weigh the benefits of judicial economy

against the potential for new delays, expense, confusion, or prejudice. Id. A motion

to consolidate may be denied if the common issue is not a principal one, if it will

cause delay in one of the cases, or will lead to confusion or prejudice in the trial of

a case. See 9 Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure,

§ 2382 (Civil 2d. 1995). “Where the evidence in one case is not relevant to the issues

in the other, consolidation would create a likelihood of prejudice by confusing the

issues.” Liberty Lincoln Mercury, Inc., 149 F.R.D. at 81.

Applying these principles to the defendants’ motion, and in the exercise of our

broad discretion with respect to matters of case management, we find it appropriate

to grant the motion in part and defer it in part. We choose to grant this motion in part

solely for purposes of the parties conducting settlement discussions, recognizing that

these cases are in vastly different procedural postures and that Garanin I is a

counseled petition, whereas the instant case involves a pro se litigant. Despite these

differences, we find that global settlement discussions would prove potentially

beneficial for all parties and would address the defendants’ concerns that any

potential award in one case could directly affect and possibly control the relief

accorded in the other suit. Due to the stark contrast in procedural positioning

between these two cases, we will defer ruling on the defendants’ motion to

consolidate until the conclusion of settlement negotiations between the parties.

Presently the parties in Garanin I are scheduled to report to the court on their

willingness to engage in settlement discussion by January 31, 2020. We will,

therefore, consolidate these cases for settlement discussion purposes and require the

parties in this lawsuit to also report to us by January 31, 2020 whether they are

willing to engage in settlement negotiations.

III. Conclusion

Accordingly, for the foregoing reasons, the defendants’ motion to consolidate

(Doc. 7) is GRANTED, in part, solely for purposes of global settlement discussions,

and purposes the parties in this lawsuit will report to us by January 31, 2020 whether

they are willing to engage in settlement negotiations. As for further consolidation of

these actions, we will DEFER any decision on this issue pending the outcome of this

mediation.

The defendants’ motion to dismiss (Doc. 7) is GRANTED, in part, and

DENIED, in part, as follows: As to Count I the motion is GRANTED, in part, to

remove the claims against 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. Count I is DENIED, in part, as

to the remainder of the plaintiffs’ claims.

Count II is DENIED.

Count III is DENIED.

Count IV is GRANTED.

Count V is GRANTED, in part, to remove the claims against Defendants Uher

and Courtright as to the William Street property, Defendants Carmona, Uher, and

Courtright as to the School Street property, and Defendants Carmona and Courtright

as to the Willow Street property, as well as any factually undeveloped claims

regarding surveillance by Defendant Carmona. Count V is DENIED, in part, as to

the remainder of the plaintiffs’ claims.

Count VI is DENIED.

Count VII is GRANTED.

Count VIII is GRANTED, in part, as to Defendant Courtright, and DENIED,

in part, as to the remainder of Count VIII.

The defendants’ motion to dismiss the punitive damage claims is GRANTED

as to the City of Scranton and the defendants in their official capacities and DENIED

as to the defendants in their individual capacities.

An appropriate order follows.

S/Martin C. Carlson

Martin C. Carlson

United States Magistrate Judge

DATED: December 17, 2019

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

VSEVOLOD GARANIN, et al. : Civil No. 3:19-CV-1275

:

Plaintiffs, :

: (Magistrate Judge Carlson)

v. :

:

CITY OF SCRANTON, et al. :

:

Defendants. :

ORDER

In accordance with the accompanying Memorandum Opinion, the

defendants’ motion to consolidate (Doc. 7) is GRANTED, in part, solely for

purposes of global settlement discussions, and purposes the parties in this lawsuit

will report to us by January 31, 2020 whether they are willing to engage in settlement

negotiations. As for further consolidation of these actions, we will DEFER any

decision on this issue pending the outcome of this mediation.

The defendants’ motion to dismiss (Doc. 7) is GRANTED, in part, and

DENIED, in part, as follows: As to Count I the motion is GRANTED, in part, to

remove the claims against 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. Count I is DENIED, in part, as

to the remainder of the plaintiffs’ claims.

Count II is DENIED.

Count III is DENIED.

Count IV is GRANTED.

Count V is GRANTED, in part, to remove the claims against Defendants Uher

and Courtright as to the William Street property, Defendants Carmona, Uher, and

Courtright as to the School Street property, and Defendants Carmona and Courtright

as to the Willow Street property, as well as any factually undeveloped claims

regarding surveillance by Defendant Carmona. Count V is DENIED, in part, as to

the remainder of the plaintiffs’ claims.

Count VI is DENIED.

Count VII is GRANTED.

Count VIII is GRANTED, in part, as to Defendant Courtright, and DENIED,

in part, as to the remainder of Count VIII.

The defendants’ motion to dismiss the punitive damage claims is GRANTED

as to the City of Scranton and the defendants in their official capacities and DENIED

as to the defendants in their individual capacities.

Further to the extent that this motion to dismiss is granted it is granted without

prejudice to the plaintiffs attempting to amend their complaint to state a claim upon

which relief may be granted by including proper allegations against appropriate

party-defendants that meet the requirements of federal law, provided that the

plaintiffs acts within 21 days of the entry of any dismissal order.

So ordered this 17th day of December 2019.

S/Martin C. Carlson

Martin C. Carlson

United States Magistrate Judge