Opinion
Civil Action No. 18-243
08-22-2018
CHARLES BONASORTE and THE PITTSBURGH STOP, INC., Plaintiffs, v. CITY OF PITTSBURGH and GUY COSTA, Defendants.
Magistrate Judge Robert C. Mitchell/District Judge Nora Barry Fischer REPORT AND RECOMMENDATION ROBERT C. MITCHELL, United States Magistrate Judge.
I. RECOMMENDATION
Presently pending before the Court is a Motion to Dismiss the Amended Complaint (ECF No. 14), with brief in support (ECF No. 15), filed by the City of Pittsburgh and Guy Costa (collectively, "Defendants"). Plaintiffs Charles Bonasorte (Bonasorte) and The Pittsburgh Stop have filed a brief in opposition. (ECF No. 17), and both parties have filed reply briefs (ECF Nos. 18, 22). For the reasons that follow, it is respectfully recommended that Defendants' motion be granted, that the amended complaint be dismissed without prejudice, and that Plaintiffs be given an opportunity to refile a complaint that complies with the Federal Rules of Civil Procedure.
II. REPORT
a. Factual and Procedural History
The City of Pittsburgh regulates parking on city streets pursuant to ordinances found in Chapter 541 of the City Code. In 2015, the Council of the City of Pittsburgh amended Chapter 541 to regulate overnight parking of oversized vehicles on city streets. The relevant subsection provides as follows.
The Code defines "oversized vehicle" as one "which meets one (1) or more of the following criteria":
(1) Vehicle exceeds seven and one-half (7.5) feet in height (not including any accessory items that may be secured to the top of the vehicle); or
(2) Vehicle exceeds nine (9) feet in width, as measured from the widest portion of the vehicle or load, but not including mirrors; or
(3) Vehicle length, including load length if any, exceeds twenty-two (22) feet in combination with any attached trailers; or
(4) Manufacturer's gross vehicle weight exceeds seventeen thousand one (17,001) pounds.
No operator of any oversized vehicle, camper, trailer, boat or other vehicle not classified as an automobile, and no owner of the vehicle shall permit the vehicle to park on any street for longer than two (2) hours, between the hours of 10:00 p.m. and 7:00 a.m. However, this provision shall not apply to the loading or unloading of commercial vehicles as otherwise provided by law. This Section shall not prohibit the parking of wheelchair-accessible vans on public streets.Pittsburgh City Code § 541.04 (G) (emphasis added). Prior to the 2015 amendments, only "commercial vehicles" were so restricted (ECF No. 9-1, pg. 3).
The preamble indicates that the 2015 amendments were enacted in consideration of the following.
WHEREAS, residential streets are intended primarily for residents to park their personal vehicles near and around their homes; and,
WHEREAS, businesses are using residential streets as permanent parking spots for their business vehicles which are often times oversized; and,
WHEREAS, these oversized vehicles are not only unsightly in neighborhoods, but they also pose serious public safety threats for residents and motorists pulling in and out of driveways and intersections; and,
WHEREAS, the City of Pittsburgh has a legitimate interest in balancing the interests of businesses, residents and motorists[.](ECF No. 9-1, pg. 1).
Bonasorte is the president and owner of The Pittsburgh Stop, corporation which operates vending carts that sell Pittsburgh sports merchandise (ECF No. 9, ¶¶ 3, 6). Nearly every day for the past 29 years, Bonasorte has operated two vending carts at the intersection of Forbes Avenue and Bigelow Boulevard in the City of Pittsburgh (Id. at ¶ 7-8). The Pittsburgh Stop holds two stationary vending permits issued by the City of Pittsburgh (Id. at ¶ 9).
In addition to vending carts, Bonasorte owns and operates two trucks, International Truck Model 1988s, which he parks in metered spaces along Forbes Avenue, a non-residential street (Id. at ¶¶ 10, 12). Bonasorte abides by the Pittsburgh Parking Authority's posted payment requirements for metered spaces, and leaves his vehicles in the same spaces in the evening when payment is not required (Id. at ¶ 11).
In 2014, Bonasorte was informed by Defendant Costa, the Chief Operations Officer for the City of Pittsburgh, and unnamed City of Pittsburgh and Pittsburgh Parking Authority employees that Costa was "targeting" The Pittsburgh Stop (Id. at ¶¶ 31-34, 37-41). Costa threatened to "take action" against Plaintiffs (Id. at 34). Beginning in 2015, the City of Pittsburgh began issuing citations to Bonasorte and The Pittsburgh Stop under the prior version of the City Code regulating overnight parking of commercial vehicles (ECF No. 1 ¶¶ 13, 15). Plaintiffs allege that their vehicles were subject to targeted enforcement of the parking ordinance and that other, similarly situated commercial vehicles were not cited (Id. at 17). Plaintiffs successfully defended the tickets on at least six occasions on the basis that The Pittsburgh Stop trucks were not commercial vehicles (Id. at ¶ 13).
Since the passage of the 2015 amendments, which took effect on December 12, 2015, Plaintiffs have been issued "over 50" traffic citations under the new ordinance regulating overnight parking of oversized vehicles, 26 of which have been successfully defended before a magisterial district judge (Id. at ¶¶ 18, 23-24). The City of Pittsburgh has dropped charges for several other tickets (Id. at ¶ 24). Plaintiffs claim that Defendant Costa aided in drafting the revised City Code with the intent to target Plaintiffs' vehicles (Id. at ¶ 22). Further, Plaintiffs claim that unnamed City of Pittsburgh Police officers have told Bonasorte that Plaintiffs' vehicles are being targeted by Costa using the amended ordinance (Id. at ¶ 28). Plaintiffs allege that similarly-situated vehicles have not been cited (Id. at ¶ 26).
On January 31, 2018, Plaintiffs filed a complaint for declaratory, injunctive, and monetary damages in the Court of Common Pleas of Allegheny County (ECF No. 1-2). In Count I, entitled "Declaratory/Injunctive Relief," Plaintiffs sought a declaration that section 541.04 (G) of the City Code was only applicable to residential streets and to enjoin the City of Pittsburgh from issuing further citations on Plaintiff's vehicles on that basis (Id. at pg. 7). In Count II, entitled "Injunctive Relief," Plaintiffs alleged that "discovery will disclose" that the Defendants are selectively enforcing section 541.04 (G) against Plaintiffs due to some "personal animus and vindictiveness" on the part of Defendant Costa, and sought to enjoin enforcement of the ordinance on that basis (Id.) Plaintiffs also sought monetary damages, costs and legal fees (Id.) Finally, in Count III, entitled "1983 Legal Action, Guy Costa and the City of Pittsburgh," Plaintiffs challenged the constitutionality of the alleged selective enforcement and sought monetary damages arguing that the City of Pittsburgh had failed to train its officers to properly enforce its ordinances without influence from Defendant Costa (Id. at pg. 8).
Defendants removed the case to this Court on February 26, 2018 (ECF No. 1). Defendants filed their first motion to dismiss on March 5, 2018 (ECF No. 4). In that motion, Defendants argued that Plaintiffs failed to set forth a prima facie case of selective enforcement under the Civil Rights Act, 42 U.S.C. § 1983, et seq., because the complaint "provided no examples of similarly situated vendors who were treated differently" (Id. at pg. 3). Additionally, Defendants claimed that Plaintiffs' non-specific allegations of personal animus were insufficient to state a plausible claim for relief (Id. at pg. 4). Defendants also argued that Plaintiffs had failed to allege a policy or custom sufficient to form a basis for municipal liability under Monell v. New York Dep't of Social Servs., 436 U.S. 658 (1978) (Id. at pg. 6-7). Next, Defendants asked this Court to dismiss the complaint on the basis that Plaintiffs were unable to maintain a due process claim under the Fourteenth Amendment because they had failed to plead a protected property interest (Id. at pg. 7-8). Finally, Defendants asserted that Defendant Costa was entitled to qualified immunity (Id. at pg. 8). Defendants also took issue with the qualification found throughout the complaint that "it is reasonably believed discovery will show" various facts, arguing that such statements cannot form the basis of a plausible claim, even at this stage of proceedings (Id. at pg. 9).
In response, Plaintiffs filed an amended complaint (ECF No. 9). In paragraph 26, Plaintiffs listed five examples of similarly situated vehicles, or classes of vehicles, which they allege were not cited under the City Code (Id. at ¶ 26). Plaintiffs indicated that, in order to appeal their citations, they must "pay collateral as required by the Magistrate at its discretion" and, if they do not defend, they are "liable for the fine assessed," which Plaintiffs allege constitutes a "deprivation of their property" (Id. at ¶¶ 30, 43). Count I of the amended complaint is identical to that of the original (Id. at pg. 8). Count II is substantially similar to that of the original complaint, but adds allegations that "there is no rational basis" for enforcement of the City Code against Plaintiffs, and states that "the City of Pittsburgh Police and Parking Authority have a custom of taking direction from City Officials, such as Guy Costa, when determining whether to enforce ordinances... without exercising prosecutorial discretion," and that those agencies have not been trained "to exercise prosecutorial discretion" (Id. at ¶¶ 52-54). Count III of the amended complaint, retitled "1983 and Pennsylvania Due Process Legal Action, Guy Costa and the City of Pittsburgh," reiterates Plaintiff's claims regarding Defendant Costa's influence over the police department, and asserts that the City of Pittsburgh has failed to train properly its police force, which has "deprived the Plaintiffs of their property without due process" (Id. at ¶¶ 57-62).
On April 23, 2018, Defendants filed a motion to dismiss the amended complaint (ECF No. 14), along with an accompanying brief (ECF No. 15), raising six arguments:(1) that Plaintiffs lack federal standing; (2) that Plaintiffs fail to plead adequately an equal protection claim; (3) that Plaintiffs fail to allege violation of a constitutionally protected property interest under the Civil Rights Act, 42 U.S.C. § 1983, et seq.; (4) that Defendant Costa is entitled to qualified immunity; (5) that Plaintiff's claims of municipal liability are inadequately pled; and (6) that the allegations contained in the amended complaint are, as a whole, insufficient to plead a cause of action (ECF No. 15, pg. 3-10). Plaintiffs have filed a response (ECF No. 17), and both parties have filed reply briefs (ECF Nos. 18, 22).
This Court has jurisdiction pursuant to 28 U.S.C. § 1331.
b. Standard of Review
A defendant moving to dismiss under Fed. R. Civ. P. 12(b)(6) bears the burden of proving that the plaintiff has failed to state a claim for relief. See Fed. R. Civ. P. 12(b)(6); see also, e.g., Hedges v. United States, 404 F.3d 744, 750 (3d Cir. 2005). The United States Supreme Court opinions in Bell Atlantic Corporation v. Twombly, 550 U.S. 544 (2007) and, more recently, in Ashcroft v. Iqbal, 556 U.S. 662 (2009), have shifted pleading standards 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. With the Supreme Court instruction in mind, the Court of Appeals for the Third Circuit has outlined a two-part analysis that courts should utilize when deciding a motion to dismiss for failure to state a claim. First, the factual and legal elements of a claim should be separated. In other words, while courts must accept all of the complaint's well-pleaded facts as true, they may disregard any legal conclusions. Second, courts then decide whether the facts alleged in the complaint are sufficient to demonstrate that the plaintiff has a "plausible claim for relief." Iqbal, 129 S.Ct. at 1950. That is, a complaint must do more than allege the entitlement to relief; its facts must show such an entitlement. Fowler v. UPMC Shadyside, 578 F.3d 203, 210-11 (3d Cir. 2009).
c. Discussion
Plaintiffs purport to bring this action pursuant to the Civil Rights Act, which provides that
[e]very 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, except that in any action brought against a judicial officer for an act or omission taken in such officer's judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable.42 U.S.C. § 1983.
Section 1983 "does not create substantive rights," but instead "provides a remedy for the violation of rights conferred by the Constitution or other statutes." Maher v. Gagne, 448 U.S. 122, 129, n. 11 (1980). To prevail in an action brought under § 1983, a plaintiff must establish an underlying violation of a federal constitutional or statutory right. See Collins v. City of Harker Heights, 503 U.S. 115, 119 (1992).
In their amended complaint, Plaintiffs allege that their federal "due process rights" have been violated because of the "targeted ...enforcement" of the City Code and that Plaintiffs have been deprived of their property without due process (ECF No. 9, at ¶ 55). Although not explicitly stated, a broad reading of paragraph 55 seemingly raises three separate claims: (1) a procedural due process violation, (2) a substantive due process violation, and (3) an equal protection claim. In addition, a fair reading of the amended complaint raises allegations of selective prosecution and municipal liability, as well as a challenge to the constitutionality of a parking ordinance. However, Plaintiffs' amended complaint only lists three counts and the comingling of legal theories upon which the complaint is based has substantially hindered this Court's disposition of Defendants' motion.
Rule 10 of the Federal Rules of Civil Procedure provides that "[a] party must state its claims or defenses in numbered paragraphs, each limited as far as practicable to a single set of circumstances. ... If doing so would promote clarity, each claim founded on a separate transaction or occurrence--and each defense other than a denial--must be stated in a separate count or defense." Fed. R. Civ. P. 10 (b).
d. Conclusion
For the reasons set forth in this Report and Recommendation, it is respectfully recommended that the Defendants' motion to dismiss be granted (ECF No. 14), that the amended complaint (ECF No. 9) be dismissed without prejudice, and that Plaintiffs be given an opportunity to refile a complaint, which shall include every cause of action they intend to bring as separate causes of action, as well as the jurisdictional basis therefor.
In accordance with Magistrate Judge's Act, 28 U.S.C. § 636(b)(1)(B) and (C), and Rule 72(D)(2) of the Local Rules pertaining to Magistrate Judges, the parties are permitted until September 5, 2018 to file written objections to this Report and Recommendation. Failure to do so may waive the right to appeal. Any party opposing written objections shall have fourteen days after the service of such objections to respond thereto.
DATED this 22nd day of August, 2018.
BY THE COURT:
s/Robert C. Mitchell
ROBERT C. MITCHELL
United States Magistrate Judge
Pittsburgh City Code § 541.01