Opinion
Civil Action 3:22-cv-00971
02-06-2023
CHRISTOPHER ZOMERFELD, Plaintiff, v. COURTDALE BORO, et al., Defendants.
MANNION, J.
REPORT AND RECOMMENDATION
JOSEPH F. SAPORITO, JR. UNITED STATES MAGISTRATE JUDGE
This federal civil rights action commenced when the plaintiff, Christopher Zomerfeld, lodged his pro se complaint with the clerk for filing on June 17, 2022, together with an application for leave to proceed in forma pauperis. (Doc. 1; Doc. 2.) On June 24, 2022, the plaintiff was granted leave to proceed in forma pauperis, and the complaint was deemed filed. (Doc. 5.)
The defendantshave appeared through counsel. On August 24, 2022, they moved to dismiss the action for failure to state a claim upon which relief can be granted. (Doc. 13.) On September 7, 2022, the defendants filed a brief in support of their motion. (Doc. 14.) Despite a sua sponte extension of time, the plaintiff has failed to file any response to the defendants' motion to dismiss. (Doc. 18.) The motion is now ripe for decision.
The defendants include: the Borough of Courtdale; the Courtdale police department; the Courtdale borough council; John Pieszala, chief of police; and Carl Hodroski, president of the borough council.
I. Background
The complaint is not a model of clarity, but the gist of the plaintiff's complaint is that his constitutional rights were violated when he was cited multiple times by local police for holding an extended yard sale at his mother's home in Courtdale.
Zomerfeld's mother owns or owned a house in Courtdale. At some point, his mother's home burned down, and she asked Zomerfeld to clean up and try to sell whatever personal property from the home could be salvaged.On multiple occasions between April 19 and May 18, 2022, the borough police chief, defendant Pieszala, issued citations to Zomerfeld for violating a local ordinance that regulated the frequency and duration of yard sales within the borough.
See generally Zomerfeld v. Lowes, Civil Action No. 3:22-CV-00422, 2022 WL 3588325 (M.D. Pa. Aug. 2, 2022) (describing circumstances of the fire and recommending dismissal), report and recommendation adopted by 2022 WL 3586452 (M.D. Pa. Aug. 22, 2022).
In addition to the allegations of the complaint, we have considered the publicly available docket record of several state magisterial district court proceedings based on these citations. See Commonwealth v. Zomerfeld, Docket No. MJ-11106-NT-0000154-2022 (Luzerne Cty. (Pa.) Magis. Dist. Ct.) (citation issued Apr. 19, 2022); Commonwealth v. Zomerfeld, Docket No. MJ-11106-NT-0000155-2022 (Luzerne Cty. (Pa.) Magis. Dist. Ct.) (citation issued Apr. 23, 2022); Commonwealth v. Zomerfeld, Docket No. MJ-11106-NT-0000156-2022 (Luzerne Cty. (Pa.) Magis. Dist. Ct.) (citation issued Apr. 27, 2022); Commonwealth v. Zomerfeld, Docket No. MJ-11106-NT-0000157-2022 (Luzerne Cty. (Pa.) Magis. Dist. Ct.) (citation issued May 1, 2022); Commonwealth v. Zomerfeld, Docket No. MJ-11106-NT-0000158-2022 (Luzerne Cty. (Pa.) Magis. Dist. Ct.) (citation issued May 5, 2022); Commonwealth v. Zomerfeld, Docket No. MJ-11106-NT-0000159-2022 (Luzerne Cty. (Pa.) Magis. Dist. Ct.) (citation issued May 9, 2022); Commonwealth v. Zomerfeld, Docket No. MJ-11106-NT-0000164-2022 (Luzerne Cty. (Pa.) Magis. Dist. Ct.) (citation issued May 13, 2022); Commonwealth v. Zomerfeld, Docket No. MJ-11106-NT-0000167-2022 (Luzerne Cty. (Pa.) Magis. Dist. Ct.) (citation issued May 16, 2022); Commonwealth v. Zomerfeld, Docket No. MJ-11106-NT-0000168-2022 (Luzerne Cty. (Pa.) Magis. Dist. Ct.) (citation issued May 18, 2022). A federal district court may properly take judicial notice of state court records, as well as its own. See Fed.R.Civ.P. 201; Sands v. McCormick, 502 F.3d 263, 268 (3d Cir. 2007); Ernst v. Child & Youth Servs. of Chester Cty., 108 F.3d 486, 49899 (3d Cir. 1997); Pennsylvania v. Brown, 373 F.2d 771, 778 (3d Cir. 1967).
This ordinance provides, in relevant part:
Outdoor Yard/Garage/Rummage/Estate Sales - Such sales shall not be held for more than three (3) consecutive days within the Borough of Courtdale and in no event shall the items held for sale be on display in any manner after darkness falls on the third consecutive day. Such sales shall not be permitted in excess of once
per month ....
Courtdale Borough, Pa., Ordinance No. 2, § 16 (Apr. 19, 2019), available at https://courtdaleborough.org/document/2-2019-quality-of-life-ordinance/ (last visited on Feb. 3, 2023). Violation of this ordinance is a summary offense, subject to a $25 fine for a first offense, and a $50 fine for a second or subsequent offense. See id.
“Municipal ordinances that are available online via a municipality's website . . . constitute public records and are subject to judicial notice.” Hena v. Vandegrift, F.Supp.3d, 2020 WL 1158640, at *25 (W.D. Pa. Mar. 10, 2020).
Based on the allegations of the complaint and the offense dates listed for each of the citations, Zomerfeld conducted a yard sale or rummage sale over a period of several weeks in April and May 2022, continuing even after the multiple citations were issued. Zomerfeld claims that the issuance of these citations “violated [his] freedom & liberty,” and he requests an award of damages in excess of $1 million.
II. Legal Standard
Rule 12(b)(6) of the Federal Rules of Civil Procedure authorizes a defendant to move to dismiss for “failure to state a claim upon which relief can be granted.” Fed.R.Civ.P. 12(b)(6). Although a plaintiff is entitled to notice and an opportunity to respond to a motion to dismiss, he has no obligation to do so-he may opt to stand on the pleadings rather than file an opposition. The Court must nevertheless examine the complaint and determine whether it states a claim as a matter of law. Stackhouse v. Mazurkiewicz, 951 F.2d 29, 30 (3d Cir. 1991); Anchorage Assocs. v. Virgin Islands Bd. of Tax Review, 922 F.2d 168, 174 (3d Cir. 1990).
“Under Rule 12(b)(6), a motion to dismiss may be granted only if, accepting all well-pleaded allegations in the complaint as true and viewing them in the light most favorable to the plaintiff, a court finds the plaintiff's claims lack facial plausibility.” Warren Gen. Hosp. v. Amgen Inc., 643 F.3d 77, 84 (3d Cir. 2011) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-56 (2007)). In deciding the motion, the Court may consider the facts alleged on the face of the complaint, as well as “documents incorporated into the complaint by reference, and matters of which a court may take judicial notice.” Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322 (2007). Although the Court must accept the fact allegations in the complaint as true, it is not compelled to accept “unsupported conclusions and unwarranted inferences, or a legal conclusion couched as a factual allegation.” Morrow v. Balaski, 719 F.3d 160, 165 (3d Cir. 2013) (quoting Baraka v. McGreevey, 481 F.3d 187, 195 (3d Cir. 2007)). Nor is it required to credit factual allegations contradicted by indisputably authentic documents on which the complaint relies or matters of public record of which we may take judicial notice. In re Washington Mut. Inc., 741 Fed. App'x 88, 91 n.3 (3d Cir. 2018); Sourovelis v. City of Philadelphia, 246 F.Supp.3d 1058, 1075 (E.D. Pa. 2017); Banks v. Cty. of Allegheny, 568 F.Supp.2d 579, 588-89 (W.D. Pa. 2008).
III. Discussion
Zomerfeld has brought this federal civil rights action under 42 U.S.C. § 1983. Section 1983 provides in pertinent part:
The pro se complaint does not reference § 1983 explicitly, but it seeks relief for the “violation of constitutional rights.” See generally Mala v. Crown Bay Marina, Inc., 704 F.3d 239, 244-46 (3d Cir. 2013) (discussing a court's obligation to liberally construe pro se pleadings and other submissions).
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, suit in equity, or other proper proceeding for redress ....42 U.S.C. § 1983. Section 1983 does not create substantive rights, but instead provides remedies for rights established elsewhere. City of Oklahoma v. Tuttle, 471 U.S. 808, 816 (1985). To establish a § 1983 claim, the plaintiff must establish that the defendant, acting under color of state law, deprived the plaintiff of a right secured by the United States Constitution. Mark v. Borough of Hatboro, 51 F.3d 1137, 1141 (3d Cir. 1995). To avoid dismissal for failure to state a claim, a civil rights complaint must state the conduct, time, place, and persons responsible for the alleged civil rights violations. Evancho v. Fisher, 423 F.3d 347, 353 (3d Cir. 2005).
Liberally construed, the pro se complaint appears to assert Fourteenth Amendment due process and equal protection claims. See generally Mala v. Crown Bay Marina, Inc., 704 F.3d 239, 244-46 (3d Cir. 2013) (discussing a court's obligation to liberally construe pro se pleadings and other submissions).
A. Borough Council and Police Department
In addition to the Borough of Courtdale, the pro se complaint also names the Borough council and the Borough police department as defendants. These claims against the Borough's legislative body and against an administrative arm of the Borough may be dismissed as redundant of the plaintiff's claims against the Borough itself. See Briggs v. Moore, 251 Fed. App'x 77, 79 (3d Cir. 2007) (per curiam) (police department); Martin v. Red Lion Police Dep't, 146 Fed. App'x 558, 562 n.3 (3d Cir. 2005) (per curiam) (police department); Schor v. N. Braddock Borough, 801 F.Supp.2d 369, 376-77 (W.D. Pa. 2011) (borough board of supervisors); Satterfield v. Borough of Schuylkill Haven, 12 F.Supp.2d 423, 431 (E.D. Pa. 1998) (borough council).
Accordingly, it is recommended that all claims against the Courtdale police department and the Courtdale borough council be dismissed as redundant of the plaintiff's parallel claims against the Borough of Courtdale itself.
B. Municipal Liability
The pro se complaint asserts § 1983 claims against the Borough of Courtdale. “On its face, § 1983 makes liable ‘every person' who deprives another of civil rights under color of state law.” Burns v. Reid, 500 U.S. 478, 497 (1991) (Scalia, J., concurring in part and dissenting in part). In Monell v. Department of Social Services, 436 U.S. 658 (1978), the Supreme Court of the United States established that municipalities and other local governmental units are included among those “persons” subject to liability under § 1983. Id. at 690.
But “[u]nder Monell, a municipality cannot be subjected to liability solely because injuries were inflicted by its agents or employees.” Jiminez v. All American Rathskeller, Inc., 503 F.3d 247, 249 (3d Cir. 2007). Rather, a municipality can be liable under § 1983 only if the conduct alleged to be unconstitutional either “implements or executes a policy statement, ordinance, regulation, or decision officially adopted and promulgated by that body's officers” or is “visited pursuant to governmental ‘custom' even though such a custom has not received formal approval through the body's official decision-making channels.” Monell, 436 U.S. at 690-91. “[I]t is when execution of a government's policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy, inflicts the injury that the government as an entity is responsible under § 1983.” Jiminez, 503 F.3d at 249. “A plaintiff must identify the challenged policy, attribute it to the [municipality] itself, and show a causal link between execution of the policy and the injury suffered.” Losch v. Borough of Parkesburg, 736 F.2d 903, 910 (3d Cir. 1984). The complaint in this case does not identify any such policy or custom adopted or promulgated by the Borough of Courtdale.
Accordingly, it is recommended that the plaintiff's § 1983 claims against the Borough of Courtdale be dismissed for failure to state a claim pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure.
C. Council President Carl Hodroski
The plaintiff appears to seek to hold defendant Hodroski, president of the Courtdale borough council, liable for the conduct of the Borough's police chief.
But Zomerfeld has failed to allege any personal involvement whatsoever by Hodroski. It is well established that “[c]ivil rights claims cannot be premised on a theory of respondeat superior. Rather, each named defendant must be shown . . . to have been personally involved in the events or occurrences which underlie a claim.” Millbrook v. United States, 8 F.Supp.3d 601, 613 (M.D. Pa. 2014) (citation omitted). As previously explained by the Third Circuit:
A defendant in a civil rights action must have personal involvement in the alleged wrongs [P]ersonal involvement can be shown through allegations of personal direction or of actual knowledge and acquiescence. Allegations of participation or actual knowledge and acquiescence, however, must be made
with appropriate particularity.Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1988).
The pro se complaint fails to allege any conduct whatsoever by defendant Hodroski. At most, the complaint appears to assert a respondeat superior claim against Hodroski.
Accordingly, we recommend that the plaintiff's § 1983 claims against defendant Hodroski be dismissed for failure to state a claim upon which relief can be granted, pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure.
D. Police Chief John Pieszala
All that remains then are the plaintiff's § 1983 claims against the Borough police chief, John Pieszala. On multiple occasions over a 30-day period, Pieszala issued citations to Zomerfeld for violating a Borough ordinance governing the frequency and duration of yard sales held within the borough. With little elaboration, Zomerfeld characterizes the issuance of theses citations as harassment, and he claims that this conduct by Pieszala violated his unspecified constitutional rights. We have liberally construed the allegations of the pro se complaint as an attempt to assert Fourteenth Amendment due process and equal protection claims.
The pro se complaint has failed to state a plausible procedural due process claim. It fails to allege that Zomerfeld availed himself of available state remedies, or why these remedies were insufficient. See Revell v. Port Auth. of N.Y. & N.J., 598 F.3d 128, 139 (3d Cir. 2010). In particular, we note that the various state magisterial district court proceedings concerning his citations presumably provided ample opportunity to challenge the citations on their merits or to raise any defenses available to him, and state law further provides the opportunity for appeal from an adverse judgment in summary offense proceedings. See generally Pa. R. Civ. P. 400 et seq. This federal court may properly presume that the state court procedures will afford the plaintiff an adequate remedy. See Corbin v. James, Civil Action No. 22-CV-4212, 2022 WL 17995548, at *10 n.15 (E.D. Pa. Dec. 29, 2022) (“This Court may assume that the state procedures [in county court and any appellate proceedings] will afford a [criminal defendant] an adequate remedy.”); cf. Pennzoil Co. v. Texaco, Inc., 481 U.S. 1, 15 (1987) (“[W]hen a litigant has not attempted to present his federal claims in related state-court proceedings, a federal court should assume that state procedures will afford an adequate remedy, in the absence of unambiguous authority to the contrary.”).
The pro se complaint has failed to state a plausible substantive due process claim as well. There is simply no recognized substantive due process right to conduct business (even a yard sale) without government regulation or interference. See Wrench Transp. Sys., Inc. v. Bradley, 340 Fed. App'x 812, 815-16 (3d Cir. 2009) (finding asserted right to engage in business and ownership rights with respect to personal property are not the sort of “fundamental” rights protected by substantive due process); see also Joey's Auto Repair & Body Shop v. Fayette Cty., 785 Fed. App'x 46, 49-50 (3d Cir. 2019) (“[A] substantive due process right to conduct business without zoning interference extends beyond our precedent.”); Saucon Valley Manor, Inc. v. Miller, 392 F.Supp.3d 554, 571-72 (E.D. Pa. 2019) (finding “the right to operate a business” is not a “‘fundamental' right[] or property interest[] protected by substantive due process”).
Finally, the pro se complaint has failed to state a plausible equal protection claim. “A plaintiff stating a claim under the Equal Protection Clause must allege that he has been treated differently because of his membership in a suspect class or his exercise of a fundamental right, or that he has been treated differently from similarly-situated others and that this differential treatment was not rationally related to a legitimate state interest.” Young v. Sewickley Twp., 160 Fed. App'x 263, 266 (3d Cir. 2005). Here, the plaintiff does not allege that his is a member of a protected group or class of citizens. Therefore, we consider his factual allegations under a “class of one” equal protection theory. See generally Village of Willowbrook v. Olech, 528 U.S. 562, 564 (2000). To state a class-of-one claim, “a plaintiff must allege that (1) the defendant treated him differently from others similarly situated, (2) the defendant did so intentionally, and (3) there was no rational basis for the difference in treatment.” Hill v. Borough of Kutztown, 455 F.3d 225, 239 (3d Cir. 2006). But the plaintiff has failed to identify any other person who held yard sales of any duration or frequency, much less the differential treatment they received. Moreover, the plaintiff has not alleged that there was no rational basis for the alleged difference in treatment, a necessary element of a class-of-one equal protection claim.
Zomerfeld has suggested a non-party Courtdale police officer named Johnson as a similarly situated person whom the defendant treated differently. In addition to working as a police officer, Johnson allegedly owns a towing company, but he has not been similarly cited for violating an ordinance. But the complaint does not allege that Johnson operated a yard sale that violated the restrictions imposed by Section 16 of Ordinance No. 2, that Johnson's towing business violated any other provision of Ordinance No. 2, or that Johnson's towing business violated any other ordinance or law at all.
Accordingly, we recommend that the plaintiff's § 1983 claims against defendant Pieszala be dismissed for failure to state a claim upon which relief can be granted, pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure.
E. Leave to Amend
The Third Circuit has instructed that if a civil rights complaint is vulnerable to dismissal for failure to state a claim, the district court must permit a curative amendment, unless an amendment would be inequitable or futile. Grayson v. Mayview State Hosp., 293 F.3d 103, 108 (3d Cir. 2002). In this case, based on the facts alleged in the complaint and the public records of which we have taken judicial notice, it is clear that amendment would be futile. Moreover, the plaintiff has failed to file any response whatsoever to the defendants' motion to dismiss. Therefore, we recommend that the complaint be dismissed without leave to amend.
IV. Recommendation
For the foregoing reasons, it is recommended that:
1. The defendants' motion to dismiss (Doc. 13) be GRANTED;
2. The pro se complaint be DISMISSED for failure to state a claim upon which relief can be granted, pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure; and
3. The Clerk be directed to mark this case as CLOSED.
NOTICE
NOTICE IS HEREBY GIVEN that the undersigned has entered the foregoing Report and Recommendation dated February 6, 2023. Any party may obtain a review of the Report and Recommendation pursuant to Local Rule 72.3, which provides:
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, 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.
Failure to file timely objections to the foregoing Report and Recommendation may constitute a waiver of any appellate rights.