Opinion
CIVIL 3:22-CV-492
04-29-2024
CAROL NOVITSKY, Plaintiff v. CITY OF HAZELTON POLICE DEPARTMENT, et al., Defendant.
Munley, Judge
REPORT AND RECOMMENDATION
Martin C. Carlson, United States Magistrate Judge
I. Introduction
In this case we most assuredly do not write upon a blank slate. Quite the contrary, this case comes before us for consideration of a motion to dismiss the plaintiff's second amended complaint. (Doc. 41). Carol Novitsky has filed this second amended complaint after the court concluded that her prior pleadings were legally insufficient in numerous ways. Despite the specific admonitions of the court in its prior rulings, Novitsky's second amended complaint repeats many of the allegations which have previously been found wanting.
Thus, for Novitsky this litigative past is prologue as we turn to an examination of her second amended complaint. Upon review, for the reasons set forth below, we conclude that Novitsky has once again failed to state a claim upon which relief may be granted. Accordingly, we recommend that this second amended complaint also be dismissed.
II. Statement of Facts and of The Case
This case arises out of a longstanding municipal code dispute between Carol Novitsky and a Hazleton code enforcement officer named Nadine Sist. The factual basis for this dispute was thoroughly explained by the court in its decision when it dismissed Novitsky's first amended complaint:
[T]he plaintiff is the owner of two adjacent residential properties located at 530 and 532 Harrison Street, Hazleton, Pennsylvania, 18201. Together, these properties constitute her childhood home, which she inherited upon the death of her mother in 2014.
The plaintiff does not reside in the properties, but travels to visit them from time to time from her home in Massachusetts. Beginning in July 2016, she alleges a series of encounters with defendant Nadine Sist, a city code enforcement officer, and other, unidentified municipal officials.
In July 2016, in response to a complaint by a neighbor, Sist allegedly entered onto the properties and provided Novitsky with written notice directing the homeowner to clean up feces found on her property. When Sist returned to reinspect the property, the issue had been resolved.
Later in 2016, the properties were repeatedly burglarized, leaving the interior of the properties in disarray. Novitsky reported the burglaries to police, who responded to investigate. But upon responding a second time, unidentified police officer(s) accused Novitsky of fabricating the burglary story and causing the disarray herself. The responding police officer(s) accused her of living in the properties in squalor, and they reported her to county adult protective services. County adult protective services visited the property after Novitsky had departed and called her cellphone to offer assistance.
On December 21 and 22, 2016, Novitsky visited her Hazleton properties to put up Christmas decorations on the front door. Sometime after her visit, Novitsky received a text message from a non-party individual informing her that the there were now condemnation notices on the properties. On or about January 6, 2017, Novitsky visited the properties again and saw the condemnation notices affixed to the doors of her Hazleton home. Novitsky called Sist by telephone. Sist advised Novitsky that she had photographic proof of unsanitary conditions inside the properties, indicating that someone-either Sist, another code enforcement official, or police-had entered into her Hazleton residential properties without a warrant or consent.
Sometime in “early 2017,” Novitsky called non-party Charles Pedri, head of the city code enforcement office, to protest the condemnation notices. Novitsky allegedly filed an administrative appeal from the condemnation notices, but her administrative appeal was never decided by municipal officials, despite follow-up inquiries by Novitsky.
In August 2017, in an apparent attempt to inspect the premises, Sist knocked on the door while Novitsky was at the properties. At the time, Novitsky was doing a “general clean-up.” Sist accused Novitsky of living in a condemned house.
On or about November 29, 2019, Novitsky learned that squatters had broken into her Hazleton properties, stolen property from the home, and damaged other items in the home.
In February 2020, Novitsky visited her Hazleton properties to remove some personal property-textbooks that she intended to mail to her Massachusetts home. She spoke about the burglaries and squatters with an unidentified city police officer who came to the house. Sist then arrived and falsely informed the police officer that the home was not Novitsky's property, that her removal of personal property was unauthorized, and that the properties were subject to an upcoming sheriff's sale. Novitsky informed Sist (and the officer, presumably) that she had letters testamentary from county probate court; Novitsky later faxed and emailed copies of these papers to Sist, the city police department, and the city code enforcement office.
On or about March 20, 2020, while Novitsky was out of Pennsylvania, she received a telephone call from Sist advising Novitsky that she would no longer have access to the contents of her Hazleton properties unless she obtained a city dumpster permit and deposited any such property in the dumpster. Sist further advised Novitsky that she could be subject to arrest if she accessed the property.
On March 31, 2020, notwithstanding the foregoing conversation with Sist, Novitsky was at her Hazleton properties to do work inside. Four unidentified city police officers arrived and questioned what she was doing at the properties. Novitsky was compelled to leave the property, taking only items she had brought with her from Massachusetts. After Novitsky locked the door, one of the police officers jammed the locks to prevent further access. They warned Novitsky that she would be subject to arrest if she were found on the premises in the future, including outdoor portions of the properties.
At the end of April 2020, Novitsky received a certified letter from the city attorney informing her that city code enforcement personnel (Sist) had previously entered the properties and prepared a detailed report, which was enclosed. The report required Novitsky to undertake substantial repairs to the properties under threat of substantial fines.
Also enclosed was a $5,000 invoice for preparation of the report by city officials.
In January 2022, Sist sent Novitsky copies of the April 2020 report and demanded that Novitsky undertake the repairs outlined in that report, under threat of substantial fines. Sist also accused Novitsky of failing to cut her grass or shrubs at all during 2021, which Novitsky denies.Novitsky v. City of Hazleton Police Dep't, No. 3:22-CV-00492, 2023 WL 5313933, at *2-3 (M.D. Pa. July 27, 2023), report and recommendation adopted, No. 3:22-CV-00492, 2023 WL 5310225 (M.D. Pa. Aug. 17, 2023).
It was against this factual backdrop that Novitsky filed her original pro se civil rights complaint pursuant to 42 U.S.C. §1983 on March 31,2022. (Doc. 1). Novitsky then amended this complaint as a matter of right on June 27, 2022. (Doc. 6). In this amended complaint, Novitsky named the City of Hazleton, the Hazleton Police Department, the Hazleton Code Enforcement Office, and Nadine Sist as defendants. Novitsky alleged that these institutional and individual defendants violated her constitutional rights through their code enforcement activities and trespassed upon her property. Novitsky's amended complaint then demanded compensatory and punitive damages along with an unusual form of injunctive relief: Novitsky sought to have fines and penalties imposed upon her in prior state court litigation revoked. (Id.)
Following the filing of this amended complaint, the defendants moved to dismiss Novitsky's amended complaint. (Doc. 13). On August 17, 2023, the district court granted this motion, adopting a Report and Recommendation filed by Chief Magistrate Judge Saporito. Novitsky v. City of Hazleton Police Dep't, No. 3:22-CV-00492, 2023 WL 5310225 (M.D. Pa. Aug. 17, 2023). In reaching this result, the court specifically concluded that: “Plaintiff's injunctive relief claim for an order vacating any court-imposed fines, liens, or other charges is DISMISSED for lack of jurisdiction under the Rooker-Feldman doctrine, pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure.” Novitsky, 2023 WL 5310225, at *1. The court further found that Novitsky's claims which pre-dated March 31,2020 were all barred by the applicable statute of limitations; concluded that “[t]he Hazleton police department and the Hazleton code enforcement office are governmental sub-units of the City of Hazleton, and they cannot be sued alongside the municipality to which they belong, as they are merely administrative arms of the municipality itself, rather than distinct entities,” Novitsky 2023 WL 5313933, at *6; found that “[t]he plaintiff's state-law trespass claims against Sist are subject to a two-year statute of limitations,” Novitsky, 2023 WL 5313933, at *8; and held that Novitsky's municipal liability claim failed as a matter of law because “[t]he pro se amended complaint in this case does not identify any . . . policy or custom adopted or promulgated by the City of Hazleton [which caused a constitutional injury].” Novitsky, 2023 WL 5313933, at *7. However, acting out of an abundance of caution, the court granted Novitsky, a pro se litigant, leave to file a second amended complaint.
On September 15, 2023, Novitsky lodged this second amended complaint with the court. (Doc. 36). Notwithstanding the court's earlier admonitions, in her second amended complaint Novitsky persists in pursuing claims which she has been informed are legally bankrupt. Thus, Novitsky continues to seek the recission of her previously imposed state court fines in this lawsuit. She also renews and restates claims which fall far beyond the two-year limitations period prescribed by law. Moreover, she persists in advancing institutional liability claims against the Hazleton Police Departmentand Hazleton Code Enforcement Office despite being informed that they are not proper defendants in a §1983 civil rights lawsuit. Finally, Novitsky renews her municipal liability claim against the City of Hazleton without addressing the limitations on municipal civil rights liability in any meaningful way.
We note that the Hazleton Police Department has already been dismissed from this second amended complaint. (Doc. 53).
This renewed complaint has inspired a renewed motion to dismiss. (Doc. 41). That motion is fully briefed by the parties and is, therefore, ripe for resolution. For the reasons set forth below, it is recommended that this motion to dismiss be granted.
III. 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 the 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 ___ U.S. ___, 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 dismissing 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 the mere conclusory statements, do not suffice.” Id. at 678. Rather in conducting a view 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 (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.”Santiago v. Warminster Twp., 629 F.3d 121, 130 (3d Cir. 2010) (quoting Iqbal, 129 S.Ct. at 1950).
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.3d 382, 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).
These legal tenets guide us in our consideration of the legal sufficiency of Novitsky's second amended complaint.
B. The Defendant's Motion to Dismiss Should be Granted.
1. The Law of the Case Doctrine Bars Many of These Claims
In this case, Ms. Novitsky's second amended complaint encounters a series of uncountable legal hurdles. At the outset, this pleading, which largely parrots her prior, dismissed complaint runs afoul of a settled legal principle, the law of the case doctrine. As we have explained:
“Under the law of the case doctrine, once an issue is decided, it will not be relitigated in the same case, except in unusual circumstances. The purpose of this doctrine is to promote the ‘judicial system's interest in finality and in efficient administration. Todd & Co., Inc. v. S.E.C., 637 F.2d 154, 156 (3d Cir.1980).'” Hayman Cash Register Co. v. Sarokin, 669 F.2d 162, 165 (3d Cir. 1981). The contours of this settled doctrine were recently described by the United States Court of Appeals for the Third Circuit in the following terms:
In Arizona v. California, 460 U.S. 605, 103 S.Ct. 1382, 75 L.Ed.2d 318 (1983), the Supreme Court noted:
Unlike the more precise requirements of res judicata, law of the case is an amorphous concept. As most commonly defined, the doctrine posits that when a court decides upon a rule of law, that decision should continue to govern the same issues in subsequent stages in the same case.
Id. at 618, 103 S.Ct. 1382 (citations omitted). The “[l]aw of the case rules have developed ‘to maintain consistency and avoid reconsideration of matters once decided during the course of a single continuing lawsuit.'”
In re Pharmacy Benefit Managers Antitrust Litigation, 582 F.3d 432, 439 (3d Cir.2009) (reversing arbitration order in antitrust case on law-of-the-case grounds) (citations omitted). It is clear that “[t]he ... doctrine does not restrict a court's power but rather governs its exercise of discretion.” Id. (quoting Pub. Interest Research Group of N.J., Inc. v. Magnesium Elektron Inc., 123 F.3d 111, 116 (3d Cir.1997)) (citations omitted). In exercising that discretion, however, courts should “be loathe to [reverse prior rulings] in the absence of extraordinary circumstances such as where the initial decision was clearly erroneous and would make a manifest injustice.” Id. (quoting Christianson v. Colt Indus. Operating Corp., 486 U.S. 800, 816, 108 S.Ct. 2166, 100 L.Ed.2d 811 (1988)). In addition to that narrow class of cases where the prior ruling was manifestly unjust, the type of “extraordinary circumstances” that warrant a court's exercising its discretion in favor of reconsidering an issue decided earlier in the course of litigation typically exist only where (1) new evidence is available, or (2) a supervening new law has been announced. Id. (citing Pub. Interest Research Group of N.J., Inc. v. Magnesium Elektron, Inc., 123 F.3d 111, 117 (3d Cir.1997)).Leslie v. Holder, 865 F.Supp.2d 627, 633-34 (M.D. Pa. 2012).
Here, the law of the case is clear and has been clearly stated by the court at the time that it dismissed Novitsky's first amended complaint. That law of the case rests upon the following five immutable legal propositions: First, “Plaintiff's injunctive relief claim for an order vacating any court-imposed fines, liens, or other charges is DISMISSED for lack of jurisdiction under the Rooker-Feldman doctrine, pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure” Novitsky, 2023 WL 5310225, at *1; second, Novitsky's civil rights claims which pre-dated March 31, 2020 were all barred by the applicable statute of limitations; third, “[t]he Hazleton police department and the Hazleton code enforcement office are governmental sub-units of the City of Hazleton, and they cannot be sued alongside the municipality to which they belong, as they are merely administrative arms of the municipality itself, rather than distinct entities,” Novitsky 2023 WL 5313933, at *6; fourth, “[t]he plaintiff's state-law trespass claims against Sist are subject to a two-year statute of limitations,” and are also time barred, Novitsky, 2023 WL 5313933, at *8; fifth, Novitsky's municipal liability claim failed as a matter of law because “[t]he pro se amended complaint in this case does not identify any . . . policy or custom adopted or promulgated by the City of Hazleton [which caused a constitutional injury].” Novitsky, 2023 WL 5313933, at *7.
Nothing cited in Novitsky's second amended complaint, or in her brief in opposition to the motion to dismiss this second amended complaint, meets the exacting standards set by law to justify foregoing the law of the case. At the outset, Novitsky has not carried her burden of demonstrating that extraordinary circumstances exist here because new evidence is available. Quite the contrary, while Novitsky's second amended complaint is somewhat more verbose than her first amended complaint, its factual narrative does not vary materially from this prior pleading in any way which casts doubt upon the court's earlier decision to dismiss the complaint. Rather, Novitsky's extended exegesis about the condition of her properties and the vast array of items stored there tends to bolster the defendants' description of the disarray found in these homes. (Doc. 36, ¶¶ 55, 56).
For example, Novitsky alleges that the properties contained “textbooks and professional books, all Plaintiff's personal course materials from Massachusetts Institute of Technology coursework including course syllabi, professors' handouts, graded homeworks and exams” along with:
[A]n orchestral glockenspiel of the type used by professional groups (not by schools), expensive Frank Epstein castanets, various pairs of mallets and sticks used for drums and other percussion, two professional-type triangles and their beaters, a Brazilian-type pandeiro, and a Middle Eastern-type hand drum (‘tar') personally signed by pro percussionist Glen Velez. There were also percussion etude and method books including the Mitchell Peters timpani book, the Allessandra Belloni Taranto-style tambourine book, and books of exercises and small pieces for timpani. Plus, the only text record of some of Plaintiff's performance work existed on concert/theatre programs stored amid the paper items in the house.(Doc. 36, ¶¶ 55, 56). Novitsky's second amended complaint also contains the following curious, speculative narrative regarding her views concerning the motivations of the defendants, a narrative that is perhaps inadvertently self-revelatory:
Plaintiff had been bullied for almost 10 years in the Hazleton schools for being “smart”, with local people still occasionally giving Plaintiff a “smartest one in the class” sneer; and her upbringing to make her fit in with wealthy students at top colleges was commonly viewed as “unfair.” Defendant NADINE SIST's actions and speech are clearly colored by this past history and show a resentment of Plaintiff's mindset, life history, and esthetic that simply would not be tolerated in a more sophisticated and educated part of the US. It is clear that Defendant NADINE SIST's motivation is to redress what some Hazleton older residents may consider a past wrong of inequality and “going beyond one's station”, without any sort of due process whatsoever, and according to this Defendant's personal tastes; this explains the repeated references to feces and contamination and insinuations about Plaintiff's mental health, intended to besmirch Plaintiff's personal reputation and shame Plaintiff in ways accessible to the public.(Id., ¶ 92).
Nor can Novitsky rely upon a supervening change in the law to set aside the law of the case since, as discussed below, the controlling legal tenets remain unchanged and continue to compel the dismissal of this complaint.
2. Novitsky's Claims Still Fail on Their Merits
Like her first amended complaint, Novitsky's second amended complaint continues to run afoul of a series of insurmountable legal obstacles.
a. Many Claims Remain Time-barred.
At the outset, many of the civil rights claims advanced by Novitsky remain time-barred by §1983's two-year statute of limitations. It is well-settled that claims brought pursuant to 42 U.S.C. §1983 are subject to the state statute of limitations for personal injury actions. Wilson v. Garcia, 471 U.S. 261, 266-67 (1985). In Pennsylvania, the statute of limitations for a personal injury action is two years. 42 Pa.C.S. § 5524. A cause of action accrues for statute of limitations purposes when the plaintiff knows or has reason to know of the injury that constitutes the basis of the cause of action. Sameric Corp. of Delaware, Inc. v. City of Philadelphia, 142 F.3d 582, 599 (3d Cir. 1998); see also, Nelson v. County of Allegheny, 60 F.3d 1010 (3d Cir. 1995).
In the instant case, Novitsky's second amended complaint plainly recites a factual narrative which begins in 2016. (Doc. 36, ¶16). Further, the vast bulk of the well-pleaded facts set forth by the plaintiff in her second amended complaint relate to events which transpired prior to March 31, 2020. (Id., ¶¶16-56). Moreover, Novitsky's description of these events, all of which took place more than two years prior to the filing of his lawsuit on March 31, 2022, makes it clear that the plaintiff knew or had reason to know of the injury that constituted the basis of her cause of action more than two years prior to initiating this litigation. Therefore, on the face of the complaint, all of these matters fall beyond the statute of limitations.
For her part, Novitsky attempts to avoid the bar of the statute of limitations by alleging that “all earlier (before 3/31/20) actionable events [should] be included on grounds that there is continuing harm.” (Id., ¶ 94). This argument is unavailing.
To be sure this two-year limitations period may be extended based upon a continuing wrong theory. However, the plaintiff must make an exacting showing to avail herself of this ground for tolling the statute of limitations. Thus, it is well settled that the “continuing conduct of [a] defendant will not stop the ticking of the limitations clock [once] plaintiff obtained requisite information [to state a cause of action]. On discovering an injury and its cause, a claimant must choose to sue or forego that remedy.” Barnes v. American Tobacco Co., 161 F.3d 127, 154 (3d Cir. 1998) (quoting Kichline v. Consolidated Rail Corp., 800 F.2d 356, 360 (3d Cir. 1986)). See also Lake v. Arnold, 232 F.3d 360, 266-68 (3d Cir. 2000). Instead:
The continuing violations doctrine is an “equitable exception to the timely filing requirement.” West v. Philadelphia Elec. Co., 45 F.3d 744, 754 (3d Cir.1995). Thus, “when a defendant's conduct is part of a continuing practice, an action is timely so long as the last act evidencing the continuing practice falls within the limitations period; in such an instance, the court will grant relief for the earlier related acts that would otherwise be time barred.” Brenner v. Local 514, United Bhd. of Carpenters and Joiners of Am., 927 F.2d 1283, 1295 (3d Cir.1991). In order to benefit from the doctrine, a plaintiff must establish that the defendant's conduct is “more than the occurrence of isolated or sporadic acts.” West, 45 F.3d at 755 (quotation omitted). Regarding this inquiry, we have recognized that courts should consider at least three factors: (1) subject matter-whether the violations constitute the same type of discrimination, tending to connect them in a continuing violation; (2) frequency-whether the acts are recurring or more in the nature of isolated incidents; and (3) degree of permanence-whether the act had a degree of permanence which should trigger the plaintiff's awareness of and duty to assert his/her rights and whether the consequences of the act would continue even in the absence of a continuing intent to discriminate. See id. at 755 n. 9 (citing Berry v. Board of Supervisors of Louisiana State Univ., 715 F.2d 971, 981 (5th Cir. 1983)). The consideration of “degree of permanence” is the most important of the factors. See Berry, 715 F.2d at 981.Cowell v. Palmer Township. 263 F.3d 286, 292 (3d Cir. 2001).
In this case, when we focus upon the most important of these factors, the plaintiff's perceived degree of permanence of injury, it is readily apparent from Novitsky's own factual narrative that the plaintiff had attached a degree of gravity to her alleged injuries which triggered her obligation to bring this lawsuit long before March of 2020. She failed to do so, and that failure now has consequences for Novitsky. These claims which pre-date March 31, 2020 remain time barred.
Likewise, any state trespass claims which predate March 31, 2020 also remain time-barred since “the statute of limitations for ‘[a]n action for waste or trespass of real property' is two years. 42 Pa.C.S. § 5524(4).” Donaldson v. Amerikohl Mining, Inc., No. 1892 WDA 2014, 2015 WL 3938721, at *2 (Pa. Super. Ct. June 9, 2015).
b. The Rooker-Feldman Doctrine Still Bars Novitsky's Demand to Set Aside State Court Judgments
Likewise, Novitsky's injunctive relief claim which seeks an order vacating any prior state court-imposed fines, liens, or other charges is still checkmated by the Rooker-Feldman doctrine. In her second amended complaint, Novitsky invites us to set aside these state court judgments even though-remarkably-she admits that she allowed a default judgment to be entered against her in this state litigation. (Doc. 36, ¶ 90). Thus, Novitsky urges us to, in effect, sit as a state appellate court and set aside a default judgment which she admits she permitted the state courts to enter against her.
This we cannot do. Thus, to the extent that the plaintiff asks this Court to overturn a state court default judgment in a housing code enforcement case, the United States Supreme Court has spoken to this issue and has announced a rule, the Rooker-Feldman doctrine, which compels federal district courts to decline invitations to conduct what amounts to appellate review of state trial court decisions.
As described by the Third Circuit:
That doctrine takes its name from the two Supreme Court cases that gave rise to the doctrine. Rooker v. Fidelity Trust Co., 263 U.S. 413, 44 S.Ct. 149, 68 L.Ed. 362 (1923); District of Columbia Court of Appeals v. Feldman, 460 U.S. 462, 103 S.Ct. 1303, 75 L.Ed.2d 206 (1983). The doctrine is derived from 28 U.S.C. § 1257 which states that “[f]inal judgments or decrees rendered by the highest court of a state in which a decision could be had, may be reviewed by the Supreme Court....”. See also Desi's Pizza, Inc. v. City of Wilkes Barre, 321 F.3d 411, 419 (3d Cir. 2003). “Since Congress has never conferred a similar power of review on the United States District Courts, the Supreme Court has inferred that Congress did not intend to empower District Courts to review state court decisions.” Desi's Pizza, 321 F.3d at 419.Gary v. Braddock Cemetery, 517 F.3d 195, 200 (3d Cir. 2008). Because federal district courts are not empowered by law to sit as reviewing courts, reexamining state court decisions, “[t]he Rooker-Feldman doctrine deprives a federal district court of jurisdiction in some circumstances to review a state court adjudication.” Turner v. Crawford Square Apartments III, LLP, 449 F.3d 542, 547 (3d Cir. 2006). Cases construing this jurisdictional limit on the power of federal courts have quite appropriately:
[E]mphasized the narrow scope of the Rooker-Feldman doctrine, holding that it “is confined to cases of the kind from which the doctrine acquired its name: cases brought by state-court losers complaining of injuries caused by state-court judgments rendered before the district court proceedings commenced and inviting district court review and rejection of those judgments.” [Exxon Mobil Corp. v. Saudi Basic
Industries Corp.], 544 U.S. at 284, 125 S.Ct. at 1521-22; see also Lance v. Dennis, 546 U.S. 459, ___, 126 S.Ct. 1198, 1201, 163 L.Ed.2d 1059 (2006)Id.
However, even within these narrowly drawn confines, it has been consistently recognized that the Rooker-Feldman doctrine prevents federal judges from considering lawsuits “brought by state-court losers complaining of injuries caused by state-court judgments rendered before the district court proceedings commenced and inviting district court review and rejection of those judgments.” Id.
This guiding principle has been expressly extended to preclude efforts by pro se litigants to use the federal courts to challenge state court code enforcement decisions. Indeed, when the Third Circuit was presented with a claim, like the argument advanced here by Novitsky, that the federal courts should set aside a state court code enforcement ruling, it rebuffed this invitation. Instead, in terms that are equally applicable here, the court of appeals held that:
The complaint, which is not a model of clarity, appears to seek review of state court decisions regarding the “subject property.” Such claims are barred by the Rooker-F eldman doctrine. See Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280, 125 S.Ct. 1517, 161 L.Ed.2d 454 (2005); District of Columbia Court of Appeals v. Feldman, 460 U.S. 462, 103 S.Ct. 1303, 75 L.Ed.2d 206 (1983); Rooker v. Fidelity Trust Co., 263 U.S. 413, 44 S.Ct. 149, 68 L.Ed. 362 (1923)Mehta v. City of Jersey City, 360 Fed.Appx. 270, 271 (3d Cir. 2010).
This immutable principle continues to apply in the instant case and prevents us from setting aside state court judgments that Novitsky chose not to contest in state proceedings.
c. The Hazleton Code Enforcement Office is Not a Proper Defendant in a § 1983 Case.
Nor can Novitsky bring a § 1983 civil rights claim against the Hazleton Code Enforcement office as she endeavors to do in this second amended complaint. Section 1983 provides that:
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law ....42 U.S.C. § 1983 (emphasis added). Thus, § 1983 expressly limits liability to persons who violate constitutional rights, a limitation that courts have construed as not reaching mere administrative arms of municipal government. For example, it is well settled that local police departments are not proper institutional defendants in federal civil rights lawsuits under Section 1983. As the Third Circuit has explained:
[A Section 1983] claim against [a] Police Department is . . . unsuccessful because the Police Department cannot be sued. “In Section 1983 actions, police departments cannot be sued in conjunction with municipalities, because the police department is merely an administrative arm of the local municipality, and is not a separate judicial entity.”Padilla v. Twp. of Cherry Hill, 110 Fed.Appx. 272, 278 (3d Cir. 2004) (quoting DeBellis v. Kulp, 166 F.Supp.2d 255, 264 (E.D.Pa. 2001)). This same logic has been applied to efforts by civil rights litigants to lodge §1983 claims against municipal code enforcement offices. A rising tide of case law holds that these subunits of municipal government are not suable entities under §1983. See e.g., Centsless Creations LLC & Assocs. v. S. Bend Police Dep't, No. 3:23-CV-628 DRL-MGG, 2024 WL 245021, at *2 (N.D. Ind. Jan. 22, 2024); Gardner v. City of Albuquerque, No. CV 23-318 GBW/SCY, 2024 WL 36069, at *3 (D.N.M. Jan. 3, 2024); Brizzee v. City of Albuquerque Code Enft, No. 19CV241 WJ-JHR, 2019 WL 1767403, at *3 (D.N.M. Apr. 22, 2019). Thus, the institutional liability claims against this particular defendant fail as a matter of law and the Hazleton Code Enforcement office should be dismissed as a defendant in this case.
d. Novitsky's Monell Municipal Liability Claim Fails .
Novitsky's second amended complaint also levels a municipal liability claim against the City of Hazelton but articulates this claim in the barest of fashions, simply stating that: “The Municipal defendants were acting under an official policy or policies of the municipality to violate Plaintiff's rights under 42 USC §1983.” (Doc. 36, ¶ 96).
This cursory form of pleading will not do. It is well-settled that local governmental entities may not be held liable under' 1983 for the acts of others 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). Instead, such an agency may only be held liable Awhen 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).
Thus, to sustain a claim against this institutional defendant, a plaintiff must “identify a . . . >policy= or >custom= that caused the plaintiff's injury.” 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 A>identified deficiency in [the] training program must be closely related to the ultimate [constitutional] injury.'” Id. at 325 (citations omitted). Therefore, analysis of a claim under Monell requires separate analysis of two distinct issues: A(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).
Here, this complaint simply does not set forth sufficient well-pleaded factual allegations which would permit a finding of institutional liability against the City of Hazleton under these prevailing legal standards. With respect to these institutional liability claims, in order to state a valid cause of action a plaintiff must provide some factual grounds for relief which Arequires more than labels and conclusions, and a formulaic recitation of the elements of a cause of actions will not do.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). “Factual allegations must be enough to raise a right to relief above the speculative level.” Id. Fairly construed, Novitsky's latest pleadings amount to little more than a formulaic recitation of the elements of a cause of action, a form of pleading that will not do. Therefore, Novitsky's claims against this institutional defendant fail as a matter of law.
e. Novitsky's Claims Against Defendant Sist also Fail.
Once Novitsky's second amended complaint is stripped of these institutional liability claims and time-barred averments, all that remains are individual liability claims against Defendant Sist which post-date March 31, 2020. While the precise nature of these claims is somewhat ambiguous, it appears that Novitsky is alleging due process and Fourth Amendment violations by Sist. Upon consideration, however, we conclude that the second amended complaint still fails to state claims upon which relief may be granted.
At the outset, nothing in Sist's alleged conduct following March of 2020 describes a denial of procedural due process. Quite the contrary, Novitsky's complaint explains that Sist provided her with written notice of alleged code violations, and she was given an opportunity to contest those violations but chose instead to allow the entry of a default judgment in these state court proceedings. In this setting, it is axiomatic that to establish a procedural due process claim:
[A] plaintiff must allege that (1) [s]he was deprived of an individual interest that is encompassed within the Fourteenth Amendment's protection of “life, liberty, or property,” and (2) the procedures available to him did not provide “due process of law.” Alvin v. Suzuki, 227 F.3d 107, 116 (3d Cir.2000).Hill v. Borough of Kutztown, 455 F.3d 225, 234 (3d Cir. 2006). In this case, Novitsky's second amended complaint affirmatively describes the procedural due process which she was provided in terms of notice and an opportunity to be heard. While Novitsky elected not to utilize this process, her choice in this regard simply does not rise to the level of a constitutional infraction on Sist's part. This claim fails.
We note that Novitsky also alleges that she as denied a hearing on an earlier housing code issue, but her complaint identifies this incident as occurring in early 2017, well beyond the two-year statute of limitations. (Doc. 36, ¶¶ 32-37). Therefore, this claim is time-barred.
Novitsky's allegations fare no better when viewed as a substantive due process claim. 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 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), affd, 666 F. App'x. 213 (3d Cir. 2016).
The Third Circuit has provided some guidance in terms of what might constitute conscience-shocking conduct. For example, evidence of “corruption or self-dealing” might meet this standard. Eichenlaub v. Twp. of Indiana, 385 F.3d 274, 286 (3d Cir 2004). Likewise, a municipal action that reflects “bias against an ethnic group” could shock the conscience. Id. The Court suggested that a “virtual taking” of property might satisfy this standard. Id. In addition, a municipality's land-use decision that is animated by “hostility to constitutionally-protected activity on the premises” might be sufficiently outrageous, in some situations, to rise to conscienceshocking conduct. Id. at 285 (citing Assocs. in Obstetrics & Gynecology v. Upper Merion Twp., 270 F.Supp.2d 633 (E.D. Pa. 2003) (denying motion to dismiss complaint in which the plaintiff alleged that the municipality selectively enforced zoning regulations to restrict access to legal abortions)).
In short, substantive due process claims face long odds and must meet exacting standards of pleading and proof. In the instant case, while it is clear that Novitsky vehemently disagrees with the code enforcement actions taken by Sist, nothing in her complaint describing the process Sist followed after March of 2020, when enforcing the city housing code, shocks the conscience or can be fairly described as arbitrary or egregious. Accordingly, the plaintiff has failed to state a substantive due process claim in this second amended complaint.
Finally, to the extent that Novitsky's second amended complaint purports to bring a Fourth Amendment claim against Sist relating to an alleged illegal entry upon her property after March 31, 2020, this second amended complaint is fatally ambiguous in one significant respect. Beyond its bare speculation that Sist must have entered the property unlawfully at some time, the complaint does not allege when any Fourth Amendment violation may have occurred.
This is a fatal flaw since:
In this case the pro se complaint is silent as to the date of an alleged constitutional infraction and therefore fails to plead a claim that falls within the period of the statute of limitations. In such instances, Rule 8 compels dismissal of the complaint, which fails to state when these events are alleged to have occurred. See Hill v. Havens, No. 4:18-CV-212, 2018 WL 1547883, at *5 (M.D. Pa. Jan. 31, 2018), report and recommendation adopted in part, rejected in part, No. 4:18-CV-00212, 2018 WL 1532799 (M.D. Pa. Mar. 29, 2018);Foster v. Fink, No. 3:14-CV-1368, 2016 WL 1728723, at *6 (M.D. Pa. Mar. 9, 2016), report and recommendation adopted, No. 3:14-CV-01368, 2016 WL 1718246 (M.D. Pa. Apr. 28, 2016); Rummel v. Lewisburg Police, No. 4:14-CV-268, 2015 WL 4078015, at *4 (M.D. Pa. Jan. 27, 2015), report and recommendation adopted in part, rejected in part, No. 4:14-CV-00268, 2015 WL 4078045 (M.D. Pa. July 2, 2015); Collins v. Bates, No. 1:14-CV-1486, 2014 WL 4447553, at *5 (M.D. Pa. Sept. 10, 2014).Serrano v. Unknown Bureau of Prisons Emps., No. 3:18-CV-1866, 2018 WL 5020036, at *5 (M.D. Pa. Sept. 25, 2018), report and recommendation adopted, No. 3:18-CV-1866, 2018 WL 5023321 (M.D. Pa. Oct. 16, 2018). Therefore, this claim, as pleaded, is bereft of essential facts necessary to state a claim upon which relief may be granted and should be dismissed.
We note that the defendants have also argued that Sist is entitled to qualified immunity as to this Fourth Amendment claim. This may be so, but such qualified immunity determinations are often fact specific, see Cannarozzo v. Borough of W. Hazleton, 575 F.Supp.3d 510, 521 (M.D. Pa. 2021), affd sub nom. Cannarozzo v. Borough of W. Hazelton, No. 22-1079, 2022 WL 17261785 (3d Cir. Nov. 29, 2022), and Novitsky has failed to assert well pleaded facts which would provide the necessary context for a qualified immunity determination. Given the paucity of Novitsky's pleadings we cannot reach this issue at present.
III. Recommendation
Accordingly, IT IS RECOMMENDED that the motion to dismiss, (Doc. 41), be GRANTED.
The plaintiff is further placed on notice that pursuant to Local Rule 72.3:
Any party may object to a magistrate judge's proposed findings, recommendations or report addressing a motion or matter described in 28 U.S.C. § 636 (b)(1)(B) or making a recommendation for the disposition of a prisoner case or a habeas corpus petition within fourteen (14) days after being served with a copy thereof. Such party shall file with the clerk of court, and serve on the magistrate judge and all parties, written objections which shall specifically identify the portions of the proposed findings, recommendations or report to which objection is made and the basis for such objections. The briefing requirements set forth in Local Rule 72.2 shall apply. A judge shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made and may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge. The judge, 31 however, need conduct a new hearing only in his or her discretion or where required by law, and may consider the record developed before the magistrate judge, making his or her own determination on the basis of that record. The judge may also receive further evidence, recall witnesses, or recommit the matter to the magistrate judge with instructions.