TATE v. MAYOR SCHEMBER

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

AMOS TATE, )

)

Plaintiff, ) C.A. No. 19-179 Erie

v. )

)

MAYOR SCHEMBER, et al., ) District Judge Susan Paradise Baxter

)

Defendants. )

MEMORANDUM OPINION

I. Background

Plaintiff Amos Tate commenced this proceeding by filing a motion to proceed in forma

pauperis, ECF No. 1, and lodging a complaint against “Mayor Schember,” the “Erie Police

Traffic Division Captain,” “Erie PA Solicitor Betza,” and the “Owners of McMillan Towing.”

ECF No. 1-1. In his complaint, Plaintiff alleges that his due process rights were violated when

his vehicle was towed on May 20, 2019, due to the fact that it was parked on a city street that

was scheduled for repaving. ECF No. 1-1 at 7-8. Plaintiff claims that, prior to the towing, he

made attempts to relocate his car, which was apparently inoperable,1 but he was unsuccessful.

Id. When he saw his vehicle being ticketed, he pleaded with the police officer to “give [him] a

couple hours” to have it moved, but a tow truck then arrived on the scene and the operator

removed his vehicle despite his protests. Id.

Plaintiff claims that, the day after his vehicle was towed, he “[served] the Clerks Office

& City Solicitor Edward Betza with legal jurisprudent [sic] on deprivation of property.” ECF

1 Attached to the complaint is a “Towed Vehicle Receipt” indicating that Plaintiff’s automobile

had flat tires and body damage, lacked a valid inspection sticker, and was considered abandoned.

ECF No. 1-2.

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No. 1-1 at 8. Nevertheless, Solicitor Betza “payed [Plaintiff] no attention” for “twenty-nine

days,” despite daily calls to Betza’s public and private offices. Id.

Based on these events, Plaintiff purports to assert four claims: (1) depriving me of my

car”; (2) “mental distress $25,000”; (3) “monetary damages $150,000”; and (4) “car return or the

book value $7,500.” ECF No. 1-1 at 5. On June 25, 2019, Plaintiff filed a “Motion for

Temporary Injunction,” ECF No. 3, which the Court construes as a motion for a temporary

restraining order pursuant to Federal Rule of Civil Procedure 65.

On July 26, 2019, the “City Defendants”2 filed a motion to dismiss the complaint for

failure to state a cognizable claim. ECF No. 8. Contemporaneously therewith, these same

Defendants filed a brief in opposition to Plaintiff’s request for injunctive relief. ECF No. 7.

Plaintiff filed a document styled as an “objection” to Defendants’ motion on July 25, 2018. ECF

No. 12. In his objections, Plaintiff makes clear that he is asserting a violation of his Fourteenth

Amendment due process rights based on the deprivation of his automobile.

II. Motion for Leave to Proceed In Forma Pauperis

The United States Court of Appeals for the Third Circuit has instructed the district courts

to utilize a two-step analysis to determine whether to direct service of a complaint where the

plaintiff seeks to proceed in forma pauperis. See Roman v. Jeffes, 904 F.2d 192, 194 n. 1 (3d Cir.

1990). “First, the district court evaluates a litigant's financial status and determines whether (s)he

is eligible to proceed in forma pauperis under § 1915(a). Second, the court assesses the

2 The Court will refer to Mayor Schember, “Erie Police Traffic Division Captain,” and “Erie PA

Solicitor Betza” collectively as the “City Defendants.” Although the complaint has not yet been

formally served, Attorney Elizabeth Farina Collura entered an appearance on behalf of the City

Defendants on July 12, 2019. ECF No. 6.

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complaint under [§ 1915(e)(2)1] to determine whether it is frivolous.” Id. (citing Sinwell v.

Shapp, 536 F.2d 15 (3d Cir. 1976)); Schneller v. Abel Home Care, Inc., 389 F. App'x 90, 92 (3d

Cir. 2010). The Court finds that Plaintiff is without sufficient funds to pay the required filing

fee. Therefore, he will be granted leave to proceed in forma pauperis.

III. Standard of Review

Defendants' motion to dismiss is brought under Rule 12(b)(6) of the Federal Rules of

Civil Procedure, as they assert that the complaint fails to state a claim upon which relief can be

granted. “When considering a Rule 12(b)(6) motion, we accept all factual allegations as true,

construe the complaint in the light most favorable to the plaintiff, and determine whether, under

any reasonable reading of the complaint, the plaintiff may be entitled to relief.” Wayne Land &

Mineral Grp. LLC v. Delaware River Basin Comm'n, 894 F.3d 509, 526–27 (3d Cir. 2018)

(internal quotation marks and citations omitted). In order to survive dismissal, “a complaint

must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible

on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly,

550 U.S. 544, 570 (2007)). Plausibility means “more than a sheer possibility that a defendant

has acted unlawfully.” Id. “A claim has facial plausibility when the plaintiff pleads factual

content that allows the court to draw the reasonable inference that the defendant is liable for the

misconduct alleged.” Id. (citing Twombly, 550 U.S. at 556).

Because Plaintiff is proceeding in forma pauperis, the Court is also independently

obligated under 28 U.S.C. § 1915(e) to consider the sufficiency of his complaint and to dismiss

the case “at any time” if the action: (i) is frivolous or malicious; (ii) fails to state a claim on

which relief may be granted; or (iii) seeks monetary relief against a defendant who is immune

from such relief. 28 U.S.C. § 1915(e)(2)(B). When conducting a review under 28 U.S.C.

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§1915(e)(2)(B)(ii), the court applies the same standard of review as it would apply under a

traditional Rule 12(b)(6) analysis. See Schreane v. Seana, 506 F. App'x 120, 122 (3d Cir. 2012).

Before dismissing a complaint for failure to state a claim upon which relief may be granted, a

court must grant the plaintiff leave to amend his complaint, unless the amendment would be

inequitable or futile. See Grayson v. Mayview State Hosp., 293 F.3d 103, 114 (3d Cir. 2002).

Because Plaintiff is proceeding pro se, the Court “has an obligation to construe the

complaint liberally,” Giles v. Kearney, 571 F.3d 318, 322 (3d Cir. 2009), and must “apply the

applicable law, irrespective of whether a pro se litigant has mentioned it by name,” Holley v.

Dep't of Veteran Affairs, 165 F.3d 244, 248 (3d Cir. 1999). Notwithstanding this more liberal

standard, “pro se litigants still must allege sufficient facts in their complaints to support a claim”

and “must abide by the same rules that apply to all other litigants.” Mala v. Crown Bay Marina,

Inc., 704 F.3d 239, 245 (3d Cir. 2013) (citations omitted).

IV. Analysis

Plaintiff’s complaint suggests that he is asserting a claim under 42 U.S.C. §1983 to obtain

redress for the alleged violation of his federal due process rights. To state a viable §1983 claim,

a plaintiff must plausibly allege that the defendant, while acting under color of state law, violated

one or more of the plaintiff’s federal constitutional or statutory rights. See West v. Atkins, 487

U.S. 42, 48 (1988). To be liable, the defendant must have been personally involved in the

alleged wrongdoing. See Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1988). To hold an

official in a supervisory position liable under §1983, the plaintiff must allege that the official

“participated in violating plaintiff’s rights, directed others to violate them, or, as the persons in

charge, had knowledge of and acquiesced in their subordinates’ violations.” Parkell v. Danberg,

833 F.3d 313, 330 (3d Cir. 2016) (internal quotation marks and citation omitted). In addition,

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policymaking officials may be liable “if it is shown that such defendants, with deliberate

indifference to the consequences, established and maintained a policy, practice or custom which

directly caused [the] constitutional harm.” A.M. ex rel. J.M.K. v. Luzerne Cty. Juvenile Det. Ctr.,

372 F.3d 572, 586 (3d Cir. 2004) (internal quotation marks and citation omitted; alteration in the

original).

In this case, the complaint adequately alleges action under color of state law3; however,

the complaint, as currently crafted, fails to state a plausible violation of Plaintiff’s federal due

process rights. To establish a procedural due process violation, a claimant must demonstrate (1)

the deprivation of “an individual interest that is encompassed within the Fourteenth

Amendment's protection of ‘life, liberty, or property,’” and must also show that (2) “the

procedures available to him did not provide ‘due process of law.’” Hill v. Borough of Kutztown,

455 F.3d 225, 233-34 (3d Cir. 2006). Although Plaintiff has adequately alleged the deprivation

of a property interest, he has not asserted any facts to show that the procedures available to

address this deprivation were constitutionally deficient.

“The core of due process is the right to notice and a meaningful opportunity to be heard.”

LaChance v. Erickson, 522 U.S. 262, 266 (1998). “While due process usually requires some type

3 It is clear that the Mayor and the “Erie Police Traffic Division Captain” are state actors for

purposes of §1983 liability. In addition, the Court assumes that a private attorney serving as City

Solicitor can be held liable under §1983. See Dev. Grp., LLC. v. Franklin Twp. Bd. of

Supervisors, No. CIV.A. 03-2936, 2004 WL 2812049, at *21 (E.D. Pa. Dec. 7, 2004), aff’d, 162

F. App'x 158 (3d Cir. 2006) (individual who held himself out as Township Solicitor and acted

jointly with state actors in the challenged conduct could potentially be liable under §1983).

Similarly, the Court assumes that the “Owners of McMillen Towing” are plausible state actors,

because the facts would support an inference that the City “so far insinuated itself into a position

of interdependence with [the towing company]” in the impoundment of Plaintiff’s vehicle “that

[the latter] must be recognized as a joint participant in the challenged activity.” Kach v. Hose,

589 F.3d 626, 646 (3d Cir. 2009) (discussing various tests for determining whether a private

party can be considered to be a state actor).

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of pre-deprivation hearing, a post-deprivation hearing may also satisfy the requirement.”

McKenna v. Portman, 538 F. App’x 221, 224 (3d Cir. 2013). “A due process violation ‘is not

complete when the deprivation occurs; it is not complete unless and until the State fails to

provide due process.’” Alvin v. Suzuki, 227 F.3d 107, 116 (3d Cir. 2000) (quoting Zinernon v.

Burch, 494 U.S. 113, 126 (1990)). “If there is a process on the books that appears to provide due

process, the plaintiff cannot skip that process and use the federal courts as a means to get back

what he wants.” Id. “Further, absent the right to control the process, a defendant cannot be held

liable, as a matter of law, for a deprivation of said right.” Sharpe v. County of Dauphin, 4:09-

CV-989, 2010 WL 3529283 (M.D. Pa. Sept. 7, 2010).

Here, the gravamen of Plaintiff’s complaint appears to concern the towing itself. Plaintiff

seems to be suggesting that the police officer had no justification for towing his vehicle in the

first place because he did not receive enough advance notice of the scheduled street paving or

sufficient time to move his car. But these types of arguments, which challenge the validity of the

underlying deprivation, are not for this Court to resolve. “[T]he focus in procedural due process

claims is on the adequacy of the remedial procedure, and not on the government’s actual actions

that allegedly deprived the individual of his liberty or property interest.” K.S.S. v. Montgomery

Cnty. Bd. of Comm’rs., 871 F. Supp. 2d 389, 397-98 (E.D. Pa. 2012). That is especially true

here, since “‘[j]udges are not in a position to second-guess a police officer's decision to tow a

vehicle which, in the officer's opinion, may create a traffic hazard.’” Sheller v. City of Phila., No.

11-CV-2371, 2012 WL 4754820, at *7 (E.D. Pa. Oct. 5, 2012) (quoting United States v. Abbott,

584 F. Supp. 442, 448 (W.D. Pa. 1984)).

Turning to the issue of what “process” Plaintiff was afforded, it is clear that he received

at least some form of “pre-deprivation” notice that his car would be towed. His own allegations

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establish that he was aware no later than 10:00 a.m. on the day in question (May 20, 2019) that

he was required to relocate his car, since the city street along which it was parked was going to

be repaved. ECF No. 1-1. Plaintiff states that he made unsuccessful efforts thereafter to get his

car moved. Id. The documents appended to his complaint show that the vehicle was ultimately

towed at 1:30 p.m. that same day, ECF No. 1-2, and Plaintiff acknowledges being present at the

time of the towing. ECF No. 1-1. Plaintiff also received a “Towed Vehicle Receipt” from the

Bureau of Police. ECF No. 1-2. Since Plaintiff clearly had notice that his car was being

impounded, the question becomes whether he was afforded a meaningful opportunity to be heard

regarding that deprivation.

On this point Plaintiff alleges only that he served “legal jurisprudence” on the “Clerk’s

office” and the city solicitor, but was ignored for 29 days. Plaintiff offers no averments

concerning the procedural avenues that were afforded him to address the seizure of his vehicle, 4

nor does he state whether he availed himself of those measures and, if so, why those measures

were inadequate. See Giuliani v. Springfield Twp., 238 F. Supp. 3d 670, 690 (E.D. Pa. 2017)

(“Remedial procedures will be deemed constitutionally inadequate if they contain a defect so

serious [as to] characterize the procedures as fundamentally unfair.”) (internal quotation marks

and citation omitted), aff’d 726 F. App’x 118 (3d Cir. 2018). As noted, “[i]f there is a process on

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

federal courts as a means to get back what he wants.” Alvin, 227 F.3d at 116. Here, the factual

underpinnings of Plaintiff’s claim are not clear from his averments.

4 As Defendants observe in their motion to dismiss, Article 527 of the City of Erie Traffic Code

provides a process for post-deprivation hearings relative to vehicles that are impounded within

the City of Erie. See ECF No. 9-1, City of Erie Traffic Code, Title V, §§527.01, et seq, also

available at https://ecode360.com/33835868.

7

To the extent Plaintiff is complaining that he was denied a pre-deprivation hearing, he

fails to allege a plausible due process violation. The concept of due process is “flexible” and

depends upon the circumstances of the case. See Kahn v. United States, 753 F2d 1208, 1218 (3d

Cir. 1985); see also Zizi v. Bausman, 306 F. Supp. 3d 697, 708 (E.D. Pa. 2018), aff'd sub nom.

Zizi v. Field Office Dir., 753 F. App'x 116 (3d Cir. 2019) (“Much like property rights, due

process rights are a bundle of sticks that rise and fall according to the factual circumstances of

the case and the nature of the interests involved.”). To determine the level of process due in a

given situation, courts take into account: (1) the private interest affected by the government’s

action; (2) the risk of erroneous deprivation under lesser procedures and the value added by

additional procedure; and (3) the Government's interests, including fiscal and administrative

burdens for additional procedure. See Mathews v. Eldridge, 424 U.S. 319, 334-35 (1976). Based

upon the facts presented in Plaintiff’s complaint, Plaintiff cannot plausibly claim that he was

constitutionally entitled to a pre-deprivation hearing.

First, in considering the private interests affected by the government’s actions, the Court

acknowledges that an individual’s loss of the continued use of a vehicle can be significant,

particularly where the “person’s ability to make a living and his access to both the necessities

and amenities of life may depend upon the availability of an automobile[.]” Goichman v.

Rheuban Motors, Inc., 682 F.2d 1320, 1324 (9th Cir. 1982) (internal quotation marks and citation

omitted). Here, however, the Plaintiff’s automobile was admittedly inoperable, so Plaintiff

clearly was not dependent upon the vehicle as a means of transportation. Instead, Plaintiff was

functionally deprived of the monetary value of his property. The Supreme Court has held that

post-deprivation remedies can be constitutionally adequate where the deprivation at issue

concerns a monetary loss. See City of Los Angeles v. David, 538 U.S. 715, 771-19 (2003)

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(holding that 27-day delay in holding a hearing regarding the recovery of money that plaintiff

paid to recover an impounded vehicle did not violate due process; plaintiff’s temporary loss of

the use of the money did not involve a harm as serious as the deprivation of a job or even the

temporary deprivation of the vehicle itself).

The second Mathews factor concerns the risk of erroneous deprivation under lesser

procedures and the value added by additional procedure. In this case, the facts that allegedly led

to the impoundment of Plaintiff’s vehicle are fairly straightforward: Plaintiff was advised that

his car was parked on a street that was scheduled for repaving. The vehicle reportedly had body

damage and flat tires and Plaintiff was admittedly incapable of moving it on his own. Given the

relatively uncomplicated facts that led to the officer’s towing decision, it is unlikely that the

requirement of a pre-deprivation hearing would significantly improve the fact-finding process.

See David, 538 U.S. at 718 (concluding that “the straightforward nature of the issue -- whether

the [plaintiff’s] car was illegally parked -- indicates that initial towing errors, while they may

occur, are unlikely”)

The third Mathews factor requires the Court to consider the Government's interests,

including fiscal and administrative burdens for additional procedure. As noted, Plaintiff’s

vehicle was towed because of the City’s need to clear the roadway in anticipation of an imminent

street paving operation. Requiring a pre-deprivation “hearing” in these types of circumstances

would clearly be impractical and would unnecessarily burden the City’s efforts to efficiently

conduct its road maintenance operations. Such a requirement would also unduly burden the

City’s enforcement of its parking regulations. For all of these reasons, the Court concludes that

Plaintiff cannot plausibly claim that his procedural due process rights were violated simply

because of the lack of a pre-deprivation hearing.

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Plaintiff’s complaint also fails to state a plausible violation of his substantive due process

rights. “‘[E]xecutive action violates substantive due process only when it shocks the

conscience.’” Sutton v. Chanceford Twp., 763 F. App’x 186, 192 (3d Cir. 2019) (quoting United

Artists Theatre Circuit, Inc. v. Twp. of Warrington, 316 F.3d 392, 399–400 (3d Cir. 2003)).

“Thus, ‘only the most egregious official conduct’ violates substantive due process.” Id. (quoting

Cty. of Sacramento v. Lewis, 523 U.S. 833, 846 (1998)). The United States Supreme Court has

explained that conduct that is “most likely to rise to the conscience-shocking level is ‘conduct

intended to injure in some way unjustifiable by any government interest.’” Chavez v. Martinez,

538 U.S. 760, 775 (2003) (quoting Lewis, 523 U.S. at 849). Here, Plaintiff’s allegations fail to

establish conscience-shocking behavior on the part of any actor, much less on the part of any

named Defendant. The removal of Plaintiff’s disabled vehicle because of a scheduled road

paving does not constitute sufficiently arbitrary or egregious misconduct, even if Plaintiff

believes he did not receive sufficient notice of the paving ahead of time. Because this claim is

incapable of being saved through further amendment, it will be dismissed with prejudice. See

Grayson v. Mayview State Hosp., 293 F.3d 103, 110-11 (3d Cir. 2002).

To the extent Plaintiff is alleging that the removal of his car constituted criminal theft,5

this assertion similarly fails to state a cognizable civil claim. It is well established that there is

5 Plaintiff’s motion for injunctive relief accuses Mullen Towing of “Grand Theft Auto, . . . in

accordance to [sic] Pennsylvania Constitution Crime Code Statute,” a Felony of the Second

Degree. It may be that Plaintiff is attempting to plead a due process claim under the

Pennsylvania Constitution; however, it seems more likely that Plaintiff is invoking the

Pennsylvania Crimes Code.

In any event, Pennsylvania courts have recognized that “[t]he due process requirements of the

Pennsylvania Constitution are indistinguishable from the Fourteenth Amendment and, therefore,

the same analysis applies to both provisions.” Turk v. Com., Dep't of Transp., 983 A.2d 805, 818

(Pa. Cmwlth. Ct. 2009) (citing Pa. Game Comm’n v. Marich, 666 A.2d 253 (Pa. 1995)); see also

Anderson v. City of Phila., 845 F. 2d 1216, 1219 n.2 (3d Cir. 1988) (noting that due process

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“no federal right to require the government to initiate criminal proceedings.” Rodriguez v. Salus,

623 F. App’x 588, 589 n.1 (3d Cir. 2015) (citing authority). Such a claim, if it is being asserted,

is incapable of being successfully repleaded and must therefore be dismissed with prejudice.

Plaintiff’s putative §1983 claim is also deficient for the reason that Plaintiff has not

shown that the named Defendants were personally involved in the alleged wrongdoing. To the

extent that Plaintiff can re-plead his complaint to state a plausible violation of his procedural due

process rights, he must direct such claim against the relevant state actors. To reiterate, “absent

the right to control the process, a defendant cannot be held liable, as a matter of law, for a

deprivation of said right.” Sharpe v. Cty. of Dauphin, 4:09-CV-989, 2010 WL 3529283 (M.D.

Pa. Sept. 7, 2010).

Finally, based upon Plaintiff’s assertion of “mental distress,” the Court will assume that

Plaintiff might be attempting to bring a claim under Pennsylvania law for the intentional

infliction of emotional distress. “To state a plausible claim for intentional infliction of emotional

distress, a plaintiff must allege sufficient facts demonstrating that (1) the defendant's conduct

was extreme and outrageous; (2) the defendant's conduct caused the plaintiff severe emotional

distress; and that (3) the defendant acted intending to cause that person such distress or with

knowledge that such distress was substantially certain to occur.” Ghrist v. CBS Broad., Inc., 40

F. Supp. 3d 623, 630 (W.D. Pa. 2014) (citing Brown v. Muhlenberg Twp., 269 F.3d 205, 217 (3d

claims under the state constitution “may be considered equivalent to the federal constitutional

claims in this case, since the relevant section of the Pennsylvania Constitution, Art. I § 1, has

been interpreted by the Pennsylvania Supreme Court as providing the same guarantees as the

fourteenth amendment of the United States Constitution.”) (citing Best v. Zoning Bd. of

Adjustment of City of Pittsburgh, 141 A.2d 606, 609 (Pa. 1958)). Accordingly, to the extent

Plaintiff is alleging a violation of his state due process rights, that claim is deficient for the same

reasons discussed in relation to Plaintiff’s federal due process claim.

11

Cir. 2001)); see Hoy v. Angelone, 691, A.2d 476, 482 (Pa. Super. Ct. 1997). “Outrageous or

extreme conduct has been defined by the appellate courts of this Commonwealth as conduct that

is so outrageous in character, so extreme in degree, as to go beyond all possible bounds of

decency, and to be regarded as atrocious, and utterly intolerable in civilized society.” Swisher v.

Pitz, 868 A.2d 1228, 1230 (Pa. Super. Ct. 2005) (internal quotation marks omitted). Here,

Plaintiff has failed to allege conduct that could plausibly give rise to liability under the foregoing

standards. See Cheney v. Daily News L.P., No. 15-2251, 2016 WL 3902639, at *4 (3d Cir. July

19, 2016) (discussing the types of situations where sufficiently extreme and outrageous conduct

has been found to exist). Consequently, no claim for intentional infliction of emotional distress

has been stated, and further amendment of such a claim would be futile.

V. Conclusion

Based upon the foregoing discussion, Plaintiff’s motion for leave to proceed in forma

pauperis will be granted, and the Clerk will be directed to file Plaintiff’s complaint. However,

Plaintiff has failed to state a plausible violation of his federal due process rights or any other

right guaranteed under federal law; thus, his claims under 42 U.S.C.§1983 will be dismissed.6

With respect to Plaintiff’s procedural due process claim, the dismissal will be without prejudice

to Plaintiff’s right to replead that claim in a manner consistent with this Memorandum Opinion.

To the extent Plaintiff is asserting §1983 claims predicated on the alleged violation of his

substantive due process rights or the desire to have criminal proceedings initiated, such claims

must be dismissed with prejudice. Similarly, any claim predicated on a theory of intentional

6 Given this result, the Court need not presently address Defendants’ defense of qualified

immunity.

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infliction of emotional distress must be dismissed with prejudice. Finally, Plaintiff’s motion for

a temporary restraining order must be denied, inasmuch as he has not demonstrated a likelihood

of success on the merits of his federal claim. See Randolph v. Wetzel, No. 19-CV-2231, 2019

WL 2577635, at *10 (E.D. Pa. June 21, 2019) (explaining the requirements for obtaining the

“extraordinary remedy” of a temporary restraining order or preliminary injunction) (citing

authority).

An appropriate order follows.

/s/ Susan Paradise Baxter

SUSAN PARADISE BAXTER

United States District Judge

cc: Amos Tate

111 East 11TH

Apt. 719,

Erie, PA 16501

(via U.S. mail, first class)

13

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

AMOS TATE, )

)

Plaintiff, ) C.A. No. 19-179 Erie

v. )

)

MAYOR SCHEMBER, et al., ) District Judge Susan Paradise Baxter

)

Defendants. )

ORDER

AND NOW, this 16th day of August, 2019, for the reasons set forth in the accompanying

Memorandum Opinion,

IT IS ORDERED that Plaintiff’s motion for leave to proceed in forma pauperis, ECF

No.[1] is GRANTED, and the clerk is directed to file the complaint.

IT IS FURTHER ORDERED, pursuant to the provisions of 28 U.S.C. §1915(e)(2)(ii),

that Plaintiff’s claims are dismissed as follows:

1. To the extent Plaintiff is asserting a §1983 claim predicated on the alleged violation of

his substantive due process rights and/or a request to have criminal proceedings initiated,

such claims are DISMISSED with prejudice.

2. Similarly, to the extent Plaintiff is seeking to assert a claim under Pennsylvania law for

the intentional infliction of emotional distress, said claim is DISMISSED with prejudice.

3. Plaintiff’s procedural due process claim under §1983 is DISMISSED without prejudice to

be reasserted in a manner consistent with the accompanying Memorandum Opinion.

Should Plaintiff wish to amend and replead his procedural due process claim, he must do so on

or before September 13, 2019. He must also submit completed USM-285 forms for each

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Defendant identified in the amended complaint. These forms can be obtained from the Clerk of

Court. In the event Plaintiff fails to replead his procedural due process claim on or before

September 13, 2019, the Court will enter an order converting the dismissal of said claim to a

dismissal with prejudice, without further notice, and the case will be closed.

IT IS FURTHER ORDERED, upon consideration of the motion to dismiss filed on behalf

of Defendants “Mayor Schember,” “Erie Police Traffic Division Captain,” and “Erie PA

Solicitor Betza,” that said motion is GRANTED to the extent that the Defendants seek dismissal

of Plaintiff’s claims consistent with the terms of this Order. The motion is otherwise DENIED.

In light of the foregoing, IT IS FURTHER ORDERED that Plaintiff’s motion for

injunctive relief is DENIED without prejudice to be reasserted, inasmuch as he has not

demonstrated a likelihood of success on the merits of any federal claim. See Randolph v. Wetzel,

No. 19-CV-2231, 2019 WL 2577635, at *10 (E.D. Pa. June 21, 2019) (explaining the

requirements for obtaining the “extraordinary remedy” of a temporary restraining order or

preliminary injunction) (citing authority).

/s/ Susan Paradise Baxter

SUSAN PARADISE BAXTER

United States District Judge

cc: Amos Tate

111 East 11TH

Apt. 719,

Erie, PA 16501

(via U.S. mail, first class)

Counsel of record

(via CM/ECF)

2