MAUREEN P. KELLY, UNITED STATES MAGISTRATE JUDGE

Chief District Judge Mark R. Homak

REPORT AND RECOMMENDATION RE: ECF NO. 5

MAUREEN P. KELLY, UNITED STATES MAGISTRATE JUDGE

I. RECOMMENDATION

For the reasons that follow, it is respectfully recommended that the Complaint, ECF No. 5, be dismissed sua sponte pursuant to 28 U.S.C. § 1915(e)(2)(B) as frivolous, malicious, or for failure to state a claim for which relief can be granted.

II. REPORT

A. Factual and Procedural Background

Plaintiffs Kaitlyn Sanders (“Sanders”) and Travis Conklin (“Conklin”) (collectively “Plaintiffs”) initiated this lawsuit by filing a Complaint and separate Motions for Leave to Proceed in Forma Pauperis (“IFP”) on February 23, 2023. ECF Nos. 1 and 3. Leave to proceed IFP was granted to each Plaintiff on March 27,2023. ECF No. 4. The Complaint was entered on the docket the following day. ECF No. 5.

The allegations in the Complaint are somewhat difficult to follow. As best as the undersigned can discern, Plaintiff Conklin is a tenant at a rental property that is owned by Defendant NJS & Sons Trust Company (“NJS”) and managed by Defendant Mizzanti Real Estate (“Mizzanti”). ECF No. 5 at 3; ECF No. 5-7 at 3. Plaintiff Sanders apparently also lives at the property, but is not named on the lease. ECF No. 5 at 3. Plaintiffs' rent allegedly is subsidized with federal funds. Id.

Plaintiffs allege that Defendants do not maintain the property in a habitable condition. IT at 4-5. They allege that maintenance issues were not timely addressed, so they reported the issues to their municipalities' code enforcement office and health department, which issued violation letters directed toward Defendants. Id. at 5; ECF No. 5-7 at 1-3; ECF No. 5-8 at 1. Plaintiffs also allege that the rental property was damaged by members of the public as a result of Plaintiff Conklin's ex-girlfriend accusing him on social media of sex crimes and of stalking her. ECF No. 5 at 4; ECF No. 5-4 at 1. Plaintiffs allege that Defendants do not maintain an occupancy permit for the rental property. ECF No. 5 at 6; ECF No. 5-13 at 1.

Plaintiffs further allege that Defendants issued a “retaliatory 60 day notice of termination” of the lease for the rental property on or about December 19, 2022. ECF No. 5 at 6; ECF No. 510 at 1. Plaintiffs reiterate in the Complaint that the termination of the lease was “out of retaliation” - presumably for the events recited above. ECF No. 5 at 6.

Plaintiffs assert that these alleged acts violated a host of their rights under the United States Constitution, as well Article I, Section 1 of the Pennsylvania Constitution. Id. at 2. Plaintiffs further assert that Defendants have committed various federal and state crimes. Id. at 2 and 5-6. On their Civil Cover Sheet, Plaintiffs also list a cause of action as “civil rights violations/housing /ADA.” ECF No. 1-3 at 1. By way of relief, Plaintiffs seek to have this Court enjoin state court eviction proceedings currently pending against them, transfer full ownership of the rental property to them, investigate Defendant Mizzanti for fraud and various code violations, and award damages in the amount of $3.5 million dollars. ECF No. 5 at 7.

B. Applicable Legal Standard

28 U.S.C. § 1915 establishes the criteria for allowing an action to proceed IFP. Section 1915(e) requires the federal courts to review complaints filed by persons that are proceeding in forma pauperis and to dismiss, at any time, any action that is frivolous or malicious, fails to state a claim on which relief may be granted, or seeks monetary relief against a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2)(B). Thus, a court must dismiss, sua sponte, a complaint that lacks arguable merit in fact or law. Stackhouse v. Crocker, 266 Fed.Appx. 189, 190 (3d Cir. 2008) (citing Neitzke v. Williams, 490 U.S. 319, 325 (1989)).

The standard for reviewing a complaint under Section 1915(e)(2)(B) is the same as that for determining a motion to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. Tourscher v. McCullough, 184 F.3d 236, 240 (3d Cir. 1999). Under that Rule, dismissal is appropriate if, reading the complaint in the light most favorable to the plaintiff, and accepting all factual allegations as true, no relief could be granted under any “reasonable reading of the complaint” Phillips v. Cnty. of Allegheny, 515 F.3d 224, 233 (3d Cir. 2008). A complaint must be dismissed even if the claim to relief is “conceivable,” because a plaintiff must allege “enough facts to state a claim to relief that is plausible on its face.” Bell Atlantic Corp, v. Twombly, 550 U.S. 544, 570 (2007). “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.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

A court must employ less stringent standards when considering pro se pleadings than when judging the work product of an attorney. See Haines v. Kerner, 404 U.S. 519, 520 (1972). In a Section 1983 action, a court must liberally construe a pro se litigant's pleadings and “apply the applicable law, irrespective of whether a pro se litigant has mentioned it by name.” Higgins v. Beyer, 293 F.3d 683, 688 (3d Cir. 2002) (quoting Holley v. Dep't of Veteran Affairs, 165 F.3d 244, 247-48 (3d Cir. 1999)). “Since this is a § 1983 action, the [pro se] plaintiffs are entitled to relief if their complaint sufficiently alleges deprivation of any right secured by the Constitution.” Higgins. 293 F.3d at 688 (quoting Nami v. Fauver, 82 F.3d 63, 65 (3d Cir. 1996)).

C. Legal Analysis

Plaintiffs' claims fail for a variety of reasons.

1. Claims under 42 U.S.C. § 1983

In order to state a claim under 42 U.S.C. § 1983, a plaintiff must meet two threshold requirements: first, the alleged misconduct giving rise to the cause of action must have been committed by a person acting under color of state law; and second, the defendant s conduct must have deprived the plaintiff of rights, privileges, or immunities secured by the Constitution or laws of the United States. Parratt v, Taylor, 451 U.S. 527, 535 (1981), overruled in part on other grounds, Daniels v. Williams, 474 U.S. 327, 330-331 (1986).

Here, Plaintiffs do not allege - and their allegations of fact do not support the conclusion - that either Defendant is a state actor. To the contrary, the allegations in the Complaint are clear that both Defendants are private parties. Allegations that their rent is subsidized by federal funds do not change that. Cf. Schutt v. Melmark, Inc., 186 F.Supp.3d 366, 376 (E.D. Pa. 2016) (a private entity's receipt of state funding does not transform it into a state actor). See also Brown v. Philip Morris Inc., 250 F.3d 789, 800 (3d Cir. 2001) (“It is well established that liability under § 1983 will not attach for actions taken under color of federal law.”).

Thus, Plaintiffs' federal civil rights claims against Defendants should be dismissed. As it is clear that leave to amend would be futile, dismissal should be with prejudice. See Fletcher-Harlee Corp, v. Pote Concrete Contractors, Inc., 482 F.3d 247, 251 (3d Cir. 2007).

2. Criminal claims

Plaintiffs appear to assert that Defendants' alleged conduct constituted various crimes. ECF No. 5 at 2 and 5-6. But only the United States Attorney may file charges in federal court. See, e.g., United States v. Panza, 381 F.Supp. 1133,1133-34 (W.D. Pa. 1974). Accordingly, any attempt by Plaintiffs to assert criminal liability against Defendants based on a private cause of action should be dismissed with prejudice. Fletcher-Harlee Corp., 482 F.3d at 251.

3. ADA claim

At the outset, the Court notes that Plaintiffs do not specifically identify or allege a violation of Title III of the Americans with Disabilities Act (“ADA”) in the Complaint. ECF No. 5. Instead, on the Civil Cover Sheet, as to “IV. Nature of Suit,” they check the boxes for “Other Civil Rights,” “Amer, w/ Disabilities - Other” and “Housing/Accommodations.” As to “VI. Cause of Action,” Plaintiffs wrote “civil rights violations/housing/ADA.” ECF No. 1-3 at 2.

To state a claim under Title III of the ADA, Plaintiffs must allege that: “(1) they was discriminated against on the basis of disability; (2) in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation; (3) by any person who owns or operates a place of public accommodation. El v. People's Emerg. Ctr., 315 F.Supp.3d 837, 844 (E.D. Pa. 2018). See also 42 U.S.C. § 12812(a).

While Plaintiff Conklin alleges that he suffers from “underlying mental illness, high functioning autism as well as having Asperger[']s Syndrome[,]” ECF No. 5 at 4, Plaintiffs do not assert that Defendants discriminated against them on that basis. Instead, Plaintiffs' allegations of fact, taken as true, indicate that Defendants retaliated against them for filing too many maintenance requests, reporting them to authorities for not maintaining the rental property, and for damage caused at the behest of Plaintiff Conklin's ex-girlfriend.

Moreover, Plaintiffs do not allege that the house that they are renting is a place of public accommodation, as is required to state a claim under Title III. Instead, “for purposes of Title III, apartments and condominiums do not constitute public accommodations, even where the property accepts tenants receiving federal housing subsidies.” El, 315 F.Supp.3d at 844 (internal quotes and footnote omitted). See also Indep. Hous. Svcs. of San Francisco v. Fillmore Ctr. Assocs., 840 F.Supp. 1328, 1344 (N.D. Cal 1993) (quoted in Mitchell v. Walters, No. 10-1061, 2010 WL 3614210, at *4 (D.N.J. Sept. 8,2010)). Accord Regents of Mercersburg Coll, v. Republic Franklin Ins. Co., 458 F.3d 159, 165 n.8 (3d Cir. 2006) (agreeing that apartments, condominiums, and residential facilities” are not subject to ADA compliance, although commercial entities occupying part of such a building would be).

Thus, Plaintiffs' ADA claim should be dismissed. As amendment would be futile, dismissal should be with prejudice. Fletcher-Harlee Corp,, 482 F.3d at 251.

4. Claims under Pennsylvania law

A district court may decline to extend supplemental jurisdiction over a state law claim where “the district court has dismissed all claims over which it has original jurisdiction.” 28 U.S.C. § 1367(c)(3). Whether supplemental jurisdiction will be extended under these circumstances is discretionary. Kach v. Hose, 589 F.3d 626, 650 (3d Cir. 2009).

Ordinarily, when “all federal-law claims are eliminated before trial, the balance of factors to be considered under the pendant jurisdiction doctrine - judicial economy, convenience, fairness, and comity - will point toward declining to exercise jurisdiction over the remaining state-law claims.” Carnegie-Mellon Univ, v. Cohill, 484 U.S. 343,350 n.7, (1988). If a district court decides not to exercise supplemental jurisdiction, it should dismiss the state law claims without prejudice. Kach, 589 F.3d at 650.

The interests of judicial economy, convenience, fairness and comity will not be served by extending supplemental jurisdiction over Plaintiffs' claims arising under Article I § 1 of the Pennsylvania Constitution, or over any other state law claims that Plaintiffs might be attempting to raise in the Complaint. This Court should decline to exercise supplemental jurisdiction, and dismiss Plaintiffs' state law claims without prejudice to refiling in state court. Furthermore, the essence of the claims that Plaintiffs attempt to assert are landlord-tenant claims that must be filed in the appropriate state court based on applicable state law.

III. CONCLUSION

Based on the foregoing reasons, it respectfully is recommended that all federal claims in Plaintiffs' Complaint, ECF No. 5, be dismissed with prejudice, sua sponte, pursuant to 28 U.S.C. § 1915(e)(2)(B) as frivolous, malicious, or for failure to state a claim for which relief can be granted,.

It is further recommended that Plaintiffs' state law claims be dismissed without prejudice to refiling in state court, if appropriate.

In accordance with the Magistrate Judges Act, 28 U.S.C. § 636(b)(1), and Local Rule 72.D.2, the parties are permitted to file written objections in accordance with the schedule established in the docket entry reflecting the filing of this Report and Recommendation. Objections are to be submitted to the Clerk of Court, United States District Court, 700 Grant Street, Room 3110, Pittsburgh, PA 15219. Failure to timely file objections will waive the right to appeal. Brightwell v. Lehman, 637 F.3d 187, 193 n.7 (3d Cir. 2011).

Any party opposing objections may file their response to the objections within fourteen days thereafter in accordance with Local Civil Rule 72.D.2.