Wolfe v. City of Sunbury

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

THOMAS WOLFE and No. 4:24-CV-00251

MELISSA SNYDER,

(Chief Judge Brann)

Plaintiffs,

v.

CITY OF SUNBURY and

JEFFREY WOJCIECHOWSKI,

Defendants.

MEMORANDUM OPINION AND ORDER

JULY 18, 2025

I. BACKGROUND

In February 2024, Plaintiffs Thomas Wolfe and Melissa Snyder filed a

complaint against Defendants Jeffrey Wojciechowski and the City of Sunbury

(“Sunbury”).1 This Court issued an Order granting Defendants’ motion to dismiss

the complaint without prejudice in July 2024.2 Following the filing of an amended

complaint, this Court granted a subsequent motion to dismiss, again without

prejudice, in December 2024.3 Plaintiffs filed a second amended complaint in

January 2025.4 Defendants filed a motion to dismiss the second amended complaint

1 Complaint, Doc. 1.

2 Order, Doc. 17.

3 Amended Complaint, Doc. 18; Order, Doc. 35.

in March 2025.5 The motion is now ripe for disposition. For the reasons stated below,

the motion is granted with prejudice.

II. STANDARD OF REVIEW

Under Federal Rule of Civil Procedure 12(b)(6), courts dismiss a complaint,

in whole or in part, if the plaintiff fails to “state a claim upon which relief can be

granted.” Following the landmark decisions of Bell Atlantic Corp. v. Twombly6 and

Ashcroft v. Iqbal,7 “[t]o survive a motion to dismiss, a complaint must contain

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

on its face.’”8 The United States Court of Appeals for the Third Circuit has instructed

that “[u]nder the pleading regime established by Twombly and Iqbal, a court

reviewing the sufficiency of a complaint must take three steps”: (1) “take note of the

elements the plaintiff must plead to state a claim”; (2) “identify allegations that,

because they are no more than conclusions, are not entitled to the assumption of

truth”; and (3) “assume the[] veracity” of all “well-pleaded factual allegations” and

then “determine whether they plausibly give rise to an entitlement to relief.”9

5 Motion to Dismiss, Doc. 45.

6 550 U.S. 544 (2007).

7 556 U.S. 662 (2009).

8 Id. at 678 (quoting Twombly, 550 U.S. at 570).

9 Connelly v. Lane Construction Corp., 809 F.3d 780, 787 (3d Cir. 2016) (internal quotations

and citations omitted).

III. STATEMENT OF FACTS

The pending motion largely does not turn on the underlying merits. Moreover,

the Second Amended Complaint only supplements the prior Amended Complaint

with a handful of allegations. Rather than restating the facts, the Court provides an

abridged summary of the second amended complaint.10

In sum, this case involves a dispute between Plaintiffs and Defendants over

various code enforcement citations. Plaintiffs Thomas Wolfe and Melissa Snyder

are residents of Sunbury, Pennsylvania. Defendant Jeffrey Wojciechowski is the

Code Department Supervisor for Defendant City of Sunbury. Plaintiffs purchased

the Property at issue in November 2016 “in a condemned state” with the

understanding that it would be renovated to make it habitable. They made a verbal

agreement with a code officer and prior Sunbury city administrator that progress on

the home would be slowed due to various surgeries Wolfe had scheduled beginning

in early 2020.

10 Readers may refer to the prior Memorandum Opinion for a more fulsome description of the

factual allegations in this case. See Memorandum Opinion, Doc. 34 at 2-10. The totality of

amendments are as follows: Second Amended Complaint, Doc. 42 ¶¶6 (elaborating that

Wojciechowski was “the immediate supervisor of Samantha Mummey who also acted in the

Code Office in Sunbury”), 28 (adding that “The governing body of Sunbury was aware of the

numerous citations filed against the Plaintiffs by the Code Office.”); 33 (elaborating that at the

Plaintiffs’ summary appeal, “The Plaintiffs were charged during this summary appeal with LO

§ 305 §§ 305.1, interior structure, safety and sanitation.”); ¶49 (alleging that Wojciechowski

filed at least six citations against Plaintiffs without probable cause, that Mummey filed at least

seven citations against Plaintiffs, and that Wojciechowski was the Head of the Code Office in

Sunbury while Mummey operated under him). ¶¶57, 64-68 (adding conclusory recitations of

various legal standards relevant to municipal liability), 69 (alleging that the City withdrew the

majority of the complaints against the Plaintiffs because Wolfe hired a code inspector who

advised City officials that the Plaintiff had no code violations).

Following a citation in July 2021, Wolfe signed a form stating that he had 90

days to complete listed repairs. Six subsequent citations and a public nuisance

determination followed against the property between July and October 2021, all but

one of which were issued within the 90-day window, and several of which were

dismissed at an October 2021 hearing. When Plaintiff went to Sunbury City Hall to

review records relating to the Property, he was confronted by hostile police officers.

A second wave of code enforcement actions began following an inspection in

June 2022; the Property received a notice of blighted property and notice of

determination listing related violations in July 2022, and water shutdown and danger

notices in August 2022. Plaintiffs hired a private inspector who opined that the

Property contained no city code violations and met with City Administrator Derek

Becker on August 16, 2022 to discuss the violations. Becker “stated more than once”

that “there were never any previous violations” at the Property and agreed to drop

pending fines. Although Plaintiffs received another citation after the meeting, all

pending charges were withdrawn in September 2022. And, though Plaintiffs were

still initially required to proceed to a nuisance hearing unless they brought proof that

an electrician was scheduled to install grounding rods at the Property, the Property

was taken off the nuisance list in November 2022.

The second amended complaint also sets out various similar properties which

were not issued citations for similar violations.

IV. ANALYSIS

Title 42 U.S.C. § 1983 “creates a species of tort liability for the deprivation

of any rights, privileges, or immunities secured by the Constitution.”11 “A defendant

in a civil rights action must have personal involvement in the alleged wrongs to be

liable and cannot be held responsible for a constitutional violation which he or she

neither participated in nor approved.”12

Plaintiffs seek Section 1983 relief from Defendants for class-of-one

discrimination and selective enforcement under the Equal Protection Clause.13 This

Court recognized in its prior Memorandum Opinion that the allegations made in

Plaintiffs’ first amended complaint could potentially support a plausible class-of-one

or selective enforcement constitutional violation, but granted the motion to dismiss

because Plaintiffs had failed to connect the violations to either defendant in the

case.14 Plaintiffs also waived their opposition to crucial arguments—personal

involvement, qualified immunity, and municipal liability—by failing to brief in

opposition.15 Plaintiffs subsequently filed a second amended complaint.

11 Manuel v. City of Joliet, 580 U.S. 357, 362 (2017) (cleaned up).

12 Baraka v. McGreevey, 481 F.3d 187, 210 (3d Cir. 2007).

13 Second Amended Complaint, Doc. 42 at 11-12.

14 Memorandum Opinion, Doc. 34 at 26.

15 Id. at 18-20, 24 n.118.

Because Plaintiffs have again failed to provide adequate argument in their

briefings, they have waived their opposition and the motion to dismiss is granted

with prejudice.

A. Claims Against Jeffrey Wojciechowski

“In our adversarial system of adjudication, we follow the principle of party

presentation[:] . . . ‘we rely on the parties to frame the issues for decision and assign

to courts the role of neutral arbiter of matters the parties present.’”16 “[A]s a general

rule, our system is designed around the premise that parties represented by

competent counsel know what is best for them, and are responsible for advancing

the facts and argument entitling them to relief.’”17 “Courts are essentially passive

instruments of government. They do not, or should not, sally forth each day looking

for wrongs to right. They wait for cases to come to them, and when cases arise, courts

normally decide only questions presented by the parties.”18 Accordingly, although

there “are no doubt circumstances in which a modest initiating role for a court is

appropriate,”19 waiver and forfeiture doctrines play a key part in reining in that role.

16 United States v. Sineng-Smith, 590 U.S. 371, 375 (2020) (quoting Greenlaw v. United States,

554 U.S. 237, 243 (2008)).

17 Id. at 375-76 (quoting Castro v. United States, 540 U.S. 375, 386 (2003) (Scalia, J.

Concurring)) (cleaned up).

18 Id. at 376 (quoting United States v. Samuels, 808 F.2d 1298, 1301 (8th Cir. 1987) (Arnold, J.,

concurring in denial of reh’g en banc) (cleaned up)).

19 Id. at 376; see also Kamen v. Kemper Fin. Servs., Inc., 500 U.S. 90, 99 (1991) (“When an issue

or claim is properly before the court, the court is not limited to the particular legal theories

advanced by the parties, but rather retains the independent power to identify and apply the

proper construction of governing law.”).

In their prior brief in support, Defendants raised a qualified immunity defense

as to Defendant Jeffrey Wojciechowski.20 Although Defendants provided sparse

briefing on this point, Plaintiffs provided no briefing in opposition at all.21 The Court

explained in its prior Memorandum Opinion that a “brief in opposition to a motion

to dismiss that fails to respond to a substantive argument to dismiss a particular claim

results in the waiver or abandonment of that claim.”22 The Court therefore found that

Plaintiffs had waived their claim against Wojciechowski by failing to brief in

opposition to the qualified immunity argument, as with the personal involvement

argument.23 The Memorandum Opinion brought this waiver issue to the Plaintiffs’

attention several times.24 Regarding another waiver issue in which Plaintiffs had

failed to brief in opposition, the Court observed: “it would benefit all parties and the

Court for Plaintiffs to respond to the arguments raised by Defendants.”25

Still, while “[t]hese failings [were] dispositive to the pending motion,” the

Court reasoned that dismissal with prejudice would be “overly harsh,”26 especially

20 Brief in Support, Doc. 25 at 34-35.

21 See Brief in Opposition, Doc. 32, generally.

22 Memorandum Opinion, Doc. 34 at 19 (quoting Orange v. United States, No. 1:23-CV-00393,

2024 U.S. Dist. LEXIS 152280, at *13 (M.D. Pa. Aug. 26, 2024)).

23 See Memorandum Opinion, Doc. 34 at 18-19.

24 Id. at 1 (“Plaintiffs appear to have abandoned their opposition to contesting one Defendant’s

personal liability for the underlying constitutional violations. These failings are dispositive to

the pending motion.”), 18-19 (“Concerningly, Plaintiffs also failed to provide any briefing in

opposition to Wojciechowski’s qualified immunity defense.”), 39 (“Wolfe has waived his

claims against Wojciechowski by failing to brief in response on his personal liability or

qualified immunity.”).

25 Id. at 24 n.118.

26 Id. at 1.

given that there appeared to be a plausible underlying constitutional violation. I

therefore exercised my discretion to allow one final opportunity to amend the

complaint and brief in opposition.27 The Court also exercised a “modest initiating

role” by providing substantial analysis of the underlying merits of the constitutional

violation in this case,28 “with the goal of streamlining future proceedings” by

narrowing the scope of the relevant issues for the litigants.29

Defendants have once again raised their qualified immunity defense, albeit

with even sparser briefing.30 Yet Plaintiffs still provide no opposition to the defense

at all.31 This does not, of course, require the Court to deem Plaintiffs’ underlying

claim waived, since the application of forfeiture and waiver doctrines is

discretionary.32 But given the ample warnings this Court provided Plaintiffs,

Defendants’ consistent attempts to explicitly raise this affirmative defense through

multiple sets of briefings, and the multifarious opportunities Plaintiffs have had to

correct deficiencies in their complaints, it is appropriate to find the underlying claim

waived and grant the motion to dismiss on this basis. Providing Plaintiffs with

27 Id. at 40.

28 Sineng-Smith, 590 U.S. at 376.

29 Id. at 1.

30 Brief in Support, Doc. 42 at 5.

31 See Brief in Opposition, Doc. 51, generally.

32 Kars 4 Kids Inc. v. Am. Can!, 8 F.4th 209, 219 n.9 (3d Cir. 2021).

additional opportunities to brief their case would be futile as Plaintiffs have failed to

heed this Court’s admonitions in the past. So the claim is dismissed with prejudice.33

B. Claims Against the City of Sunbury

A municipal body is a “person” for purposes of liability under 42 U.S.C. §

1983 but it is only liable for its own acts.34 Municipalities act through a “policy

statement, ordinance, regulation, or a decision officially adopted and promulgated

by that body’s officers.”35 Alternatively, a municipality can also act through

customs, which are practices “so permanent and well settled as to constitute a custom

or usage with the force of law.”36 Finally, a municipality can be liable due to its

failure to act, such as by providing deficient training or supervision, if this failure

demonstrates the municipality’s “deliberate indifference to constitutional rights.”37

33 In any case, Plaintiffs’ briefing of their supervisory liability theory only recites facts and never

attempts to identify, cite or apply the law. See Brief in Opposition, Doc. 51 at 7-9. This is

frustrating to the Court and pushes the Court’s “modest initiating role” to the breaking point;

it rises to waiver through insufficient briefing. See Comm. of Pa. Dep’t of Pub. Welfare v.

United States Dep’t of Health and Human Servs., 101 F.3d 939, 946 (3d Cir. 1996) (quoting

Laborers Int’l Union of N. Am. v. Foster Wheeler Corp., 26 F.3d 375, 398 (3d Cir. 1994)) (“An

issue is waived unless a party raises it in its opening brief, and for those purposes ‘a passing

reference to an issue . . . will not suffice to bring that issue before this court.’”). The Court

already took some initiating role by raising the possibility of a supervisory liability claim

against Wojciwchowski on its own initiative in its prior Memorandum Opinion, in the hopes

that Plaintiffs would flesh out the argument if they wished to pursue it—and such a claim may

even have been viable here. See Memorandum Opinion, Doc. 34 at 17-20. But the Court will

not litigate this issue on Plaintiffs’ behalf.

34 Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 690-91 (1978).

35 Monell, 436 U.S. at 690.

36 City of St. Louis v. Prapotnik, 485 U.S. 112, 127 (1988).

37 City of Canton v. Harris, 489 U.S. 378, 388, 392 (1989).

In sum, to hold Sunbury liable, Plaintiffs must argue that one of these theories of

liability ties the constitutional violation at issue to Sunbury’s conduct.

To sufficiently link a municipal body to a custom causing constitutional

injury, a plaintiff must demonstrate that the municipal body “had knowledge of

‘similar unlawful conduct in the past, . . . failed to take precautions against future

violations, and that [its] failure, at least in part, led to [his] injury.’”38 As to the

failure-to-train theory, “a municipality’s culpability is for a deprivation of rights is

at its most tenuous where a claim turns on a failure to train.”39 Deliberate

indifference “is a stringent standard of fault”40 ordinarily requiring the municipal

body’s notice of a “pattern of similar constitutional violations.”41

Plaintiffs’ entire brief simply recites a handful of allegations from the second

amended complaint and provides no legal argument or citation.42 Some of these

quotations include complaint paragraphs setting out conclusory, boilerplate

recitations of various municipal liability legal standards.43 These paragraphs do not

38 Estate of Roman v. City of Newark, 914 F.3d 789, 798 (3d Cir. 2019) (quoting Bielevicz v.

Dubinon, 915 F.2d 845, 850 (3d Cir. 1990)).

39 Connick v. Thompson, 562 U.S. 51, 61 (2011).

40 Bd. of Cnty. Comm’rs of Bryan Cnty. v. Brown, 520 U.S. 397, 410 (1997).

41 Connick, 562 U.S. at 62. There is an often-invoked yet rarely-satisfied exception where the

need for training “can be said to be ‘so obvious’ that failure to do so could properly be

characterized as ‘deliberate indifference’ to constitutional rights.’” See Canton, 489 U.S. at

390 n.10. Although the standard would not be met here, the Court need not devote substantial

analysis to it. Despite some conclusory recitations of this legal standard in the Second

Amended Complaint, Plaintiffs do not invoke it in their brief in opposition.

42 With the exception, of course, of citing Monell itself. See Brief in Opposition, Doc. 51 at 9-11.

43 See id. at 10-11 (“In paragraph 63, the Plaintiff alleged that the City has adopted and

maintained for many years a recognized and accepted policy, custom, and practice of

condoning and/ or acquiescing in the abuse of power by code enforcement officers to

plausibly allege any factual matter for purposes of the motion to dismiss because

they are conclusory.44 And they cannot be read as advancing any coherent legal

argument either.

“To raise an issue, a party must present it with sufficient specificity to allow

the court to pass on it.”45 “Mere allusion or reference is not enough; the issue must

actually be raised with a minimum level of thoroughness.”46 Aside from recitations

of the complaint, the closest Plaintiffs get to advancing an argument is the following

sentence: “Plaintiffs have alleged that the City Council and the City Administrator

had knowledge that the code office was violating the Plaintiffs’ Civil Rights but did

nothing to stop code officials or train code officials not to violate the Plaintiffs’

rights.”47 This does not rise beyond mere allusion or reference.

A brief note on the merits. Aside from one instance of somewhat similar

conduct,48 Plaintiffs never attempt to set out a pattern of similar violations in their

selectively enforce City ordinances against the Plaintiffs, which violates the 14th Amendment

to the Constitution. In Paragraph 64, the Plaintiffs alleged that the City has known of this

unconstitutional action for many years and has done nothing to stop it. In Paragraph 65, the

Plaintiffs alleged that the City Council failed to properly train or supervise City code

employees.”).

44 James v. City of Wilkes-Barre, 700 F.3d 675, 681 (3d Cir. 2012) (“At the motion to dismiss

stage, we accept as true all factual assertions, but we disregard threadbare recitals of the

elements of a cause of action, legal conclusions, and conclusory statements.”).

45 Teleglobe Comms. Corp. v. BCE, Inc. (In re Teleglobe Comms. Corp.), 493 F.3d 345, 376 (3d

Cir. 2007)

46 Seifert v. Pa. Human Relations Comm’n, 301 F.App’x 194, 196-97 (3d Cir. 2008).

47 Brief in Opposition, Doc. 51 at 9.

48 It is also worth noting that the settlement agreement to which Plaintiffs cite did not admit

liability and therefore has dubious value to establishing a pattern of violations. Second

Amended Complaint, Doc. 42 ¶68. It is not completely irrelevant at this stage of litigation—

and for this reason the Court did not strike it from the complaint—but neither does it have the

complaint, which dooms their custom and failure-to-train arguments under this set

of facts as the Court noted in its prior Memorandum Opinion.49 The brief could be

read to suggest that the series of citations issued against Plaintiffs are themselves the

pattern of constitutional violations creating a custom or providing Sunbury with

notice, though again, it fails to provide any legal authority for this proposition.50

Moreover, disregarding conclusory allegations,51 the Second Amended

Complaint’s only plausible assertion that Sunbury had notice of the pattern of

citations arose when Wolfe met with Becker. Even drawing various key assumptions

in Plaintiffs’ favor,52 this does not plausibly support Monell liability, as it shows

knowledge of a pattern of violations after they occurred rather than acquiescence in

an existing pattern of violations. Aside from one citation received shortly afterwards,

no new citations or actions were initiated against the Property after the August 16,

2022 Becker meeting.53 Moreover, though it was not immediately effective,

persuasive force of the consent decree at issue in Estate of Roman v. City of Newark, 914 F.3d

789 (3d Cir. 2019).

49 See Memorandum Opinion, Doc. 34 at 22-26.

50 Brief in Opposition, Doc. 51 at 9-10.

51 Id. ¶¶28, 36, 64.

52 Factually, this assumes that Becker was made aware of all prior citations, despite the second

amended complaint alleging that “Becker stated more than once that there were never any

previous violations.” Second Amended Complaint, Doc. 42 ¶¶25. Legally, this assumes that

the knowledge of just one City Administrator is sufficient to impute notice to the City for

purposes of municipal liability, and that a series of violations perpetrated exclusively against

the Plaintiff is sufficient to establish a patter for purposes of a custom or failure to train Monell

claim. Lacking argument on the matter, the Court declines to reach any of these questions.

53 Plaintiffs received a new citation on August 19, 2022, but according to the Second Amended

Complaint it was issued on August 12, 2022. Second Amended Complaint, Doc. 42 ¶¶23-34.

In any case, this single contemporaneous citation would not rise to showing Sunbury’s

deliberate indifference. See Connick, 563 U.S. at 63 n.7 (quoting Canton, 489 U.S. at 396

Becker’s promise to drop outstanding citations and actions was borne out by

September 2022, and the Property was ultimately removed from the nuisance list in

November 2022. This does not show Sunbury’s failure to take precautions against

future constitutional violations once it had notice, and it does not show deliberate

indifference towards such violations. As this is Plaintiffs’ third attempt to make out

municipal liability their claim against Sunbury is dismissed with prejudice.

V. CONCLUSION

Plaintiffs failed to brief in opposition to Wojciechowski’s assertion of

qualified immunity. Their opposition is waived and the motion to dismiss is granted.

Plaintiffs have also failed to raise any argument for Sunbury’s municipal liability

beyond mere allusion, so their opposition is similarly waived. Be that as it may, the

second amended complaint does not plausibly allege Sunbury’s municipal liability.

The motion to dismiss shall therefore be granted in full, with prejudice.

(O’Connor, J., concurring in part and dissenting in part) (“[C]ontemperaneous or subsequent

conduct cannot establish a pattern of violations that would provide ‘notice to the cit[y] and the

opportunity to conform to constitutional dictates.’”).

Accordingly, IT IS HEREBY ORDERED that:

1. Defendants’ Motion to Dismiss (Doc. 45) is GRANTED with

prejudice.

2. The Clerk of Court is directed to CLOSE this case.

BY THE COURT:

s/ Matthew W. Brann

Matthew W. Brann

Chief United States District Judge