Opinion
Civil Action 3:22-cv-00492
07-27-2023
CAROL M. NOVITSKY, Plaintiff, v. CITY OF HAZLETON POLICE DEPARTMENT, et al., Defendants.
MARIANI, J.
REPORT AND RECOMMENDATION
JOSEPH F. SAPORITO, JR. United States Magistrate Judge
This federal civil rights action commenced on March 31, 2022, when the plaintiff filed her original, fee-paid pro se complaint. (Doc. 1.) On June 27, 2022, the plaintiff filed her pro se amended complaint as a matter of course.(Doc. 6.) In the amended complaint, she seeks damages and injunctive relief against the City of Hazelton, its police department, its code enforcement office, and an individual code enforcement officer named Nadine Sist. The plaintiff is the owner of two adjacent residential properties within the City of Hazleton, which she inherited upon the passing of her mother in 2014. The properties constitute her childhood home, but she does not reside there-she lives in Massachusetts.
The defendants have suggested that the plaintiff's amended complaint was improperly filed because she had not yet effected service of process on the defendants. But the federal rules permit a plaintiff to amend her complaint once as a matter of course within 21 days after serving it, Fed.R.Civ.P. 15(a)(1)(A), or within 21 days after service of a responsive pleading or a motion under Rule 12(b), (e), or (f), Fed.R.Civ.P. 15(a)(1)(B). In this case, the plaintiff's amended complaint clearly falls within the scope of the latter provision, Rule 15(a)(1)(B), and thus it was properly filed as a matter of course. See In re Berk, 767 Fed. App'x 384, 385 n.1 (3d Cir. 2019) (per curiam) (“questioning” proposed interpretation of this rule requiring a plaintiff to actually serve her complaint before amending it once as a matter of course); Brown v. Lyons, 977 F.Supp.2d 475, 481 n.6 (E.D. Pa. 2013) (noting that the plaintiff “could amend his complaint once as of right prior to service under Federal Rule of Civil Procedure 15(a)(1)”) (emphasis added).
In her pro se amended complaint, Novitsky alleges that, over a course of years, the defendants have entered into her Hazleton home on one or more occasions without a warrant or her consent, issued unsubstantiated municipal code violation notices based on the condition of the home and its contents, and ultimately affixed condemnation notices on the doors to the home. Novitsky alleges that she appealed these code violation and condemnation notices, but the city has failed to consider her appeal, which has remained pending for a period of years. She further alleges that, when she has visited the properties and attempted to enter the house, she has been ordered to leave and refused access to the home by police. Novitsky also alleges that the city has billed her thousands of dollars for at least one code enforcement inspection and report, which she did not authorize or agree to, and which was based on the defendants' allegedly unlawful entry into the home. She alleges that the defendants' actions have deprived her of her property interests without due process of law, interfered with her right to use and enjoy the home, and diminished its market value. Based on the same conduct, the plaintiff has also asserted state-law trespass claims against the defendants.
The defendants have waived formal service of process and, appearing through counsel, they have moved to dismiss the complaint for failure to state a claim upon which relief can be granted. (Doc. 13.) That motion is fully briefed and ripe for decision. (Doc. 24; Doc. 31.)
I. Background
Based on the allegations of the pro se amended complaint, the 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.
Novitsky disputes the factual basis of the condemnation notices generally, but her amended complaint does not relate any particular information about the notices themselves.
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.
At one point, several months after filing her appeal, Novitsky was told by Sist that the city council lacked a quorum to consider it.
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.
II. Legal Standard
A. Rule 12(b)(1) Dismissal Standard
The plaintiff bears the burden of establishing the existence of subject matter jurisdiction when challenged under Rule 12(b)(1). See Kehr Packages, Inc. v. Fidelcor, Inc., 926 F.2d 1406, 1409 (3d Cir. 1991); see also Shawe v. Pincus, 265 F.Supp.3d 480, 484 (D. Del. 2017) (“A motion to dismiss pursuant to the Rooker-Feldman doctrine is a challenge to the court's subject matter jurisdiction.”). A defendant may challenge the existence of subject matter jurisdiction in one of two fashions: it may attack the complaint on its face or it may attack the existence of subject matter jurisdiction in fact, relying on evidence beyond the pleadings. See Gould Elecs. Inc. v. United States, 220 F.3d 169, 176 (3d Cir. 2000); Mortensen v. First Fed. Sav. & Loan Ass'n, 549 F.2d 884, 891 (3d Cir. 1977). Where a defendant attacks a complaint as deficient on its face, “the court must consider the allegations of the complaint as true.” Mortensen, 549 F.2d at 891. “In deciding a Rule 12(b)(1) facial attack, the court may only consider the allegations contained in the complaint and the exhibits attached to the complaint; matters of public record such as court records, letter decisions of government agencies and published reports of administrative bodies; and ‘undisputably authentic' documents which the plaintiff has identified as a basis of his claims and which the defendant has attached as exhibits to his motion to dismiss.” Medici v. Pocono Mountain Sch. Dist., No. 09-CV-2344, 2010 WL 1006917, at *2 (M.D. Pa. Mar. 16, 2010). However, when a motion to dismiss attacks the existence of subject matter jurisdiction in fact, “no presumptive truthfulness attaches to plaintiff's allegations,” and “the trial court is free to weigh the evidence and satisfy itself as to the existence of its power to hear the case.” Mortensen, 549 F.2d at 891. This case falls into the latter category. See Shawe, 265 F.Supp.3d at 484 (“An attack to subject matter jurisdiction based on the Rooker-Feldman doctrine is a factual attack.”); accord Walthour v. Child & Youth Servs., 728 F.Supp.2d 628, 635 (E.D. Pa. 2010).
B. Rule 12(b)(6) Dismissal 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). “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. Cnty. of Allegheny, 568 F.Supp.2d 579, 588-89 (W.D. Pa. 2008).
III. Discussion
Novitsky has brought this federal civil rights action under 42 U.S.C. § 1983. Section 1983 provides in pertinent part:
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).
The pro se amended complaint seeks injunctive relief and an unspecified award of damages. It is organized into three separate counts. The first count asserts a § 1983 claim for damages based on the alleged violation of the plaintiff's Fourth Amendment right to be free from unreasonable searches and seizures and her Fourteenth Amendment right to be free from deprivation of property without due process of law. The second count asserts a parallel claim for injunctive relief-namely, an order enjoining the defendants from entering her properties in the future without a warrant or her consent and vacating any fines, liens, or other charges levied against the plaintiff or her properties as a result of the foregoing allegedly unconstitutional conduct. The third count asserts a state-law tort claim for common law trespass based on the same facts. 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).
E.g., civil penalties, we presume.
A. Rooker-Feldman Doctrine
The defendants argue that this action should be dismissed for lack of subject matter jurisdiction under the Rooker-Feldman doctrine to the extent that it seeks injunctive relief vacating any fines, liens, or other charges imposed by state-court order.
Rooker-Feldman “is a narrow doctrine, confined to ‘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.'” Lance v. Dennis, 546 U.S. 459, 464 (2006) (per curiam) (quoting Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280, 284 (2005)). “[T]here are four requirements that must be met for the Rooker-Feldman doctrine to apply: (1) the federal plaintiff lost in state court; (2) the plaintiff ‘complain[s] of injuries caused by [the] state-court judgments'; (3) those judgments were rendered before the federal suit was filed; and (4) the plaintiff is inviting the district court to review and reject the state judgments.” Great W. Mining & Mineral Co. v. Fox Rothschild LLP, 615 F.3d 159, 166 (3d Cir. 2010) (alterations in original) (quoting Exxon Mobil, 544 U.S. at 284).
To the extent the plaintiff in this case does seek an order vacating any fines, liens, or other charges levied against her or the properties by a state court as a consequence of the defendants' allegedly unconstitutional conduct, her claims for injunctive relief clearly constitute complaints about putative injuries caused by a state court judgment. Consequently, this federal district court lacks jurisdiction over such claims under the Rooker-Feldman doctrine. See Rapisardi v. N.J. Dep't of Envtl. Protection, 273 Fed. App'x 182, 183 (3d Cir. 2008) (per curiam).
The other requested injunctive relief-an order enjoining the defendants from future entry into her properties without consent or a warrant-does not fall within the scope of the Rooker-Feldman doctrine. See Major Tours, Inc. v. Colorel, 720 F.Supp.2d 587, 598 (D.N.J. 2010) (Rooker-Feldman doctrine did not bar exercise of jurisdiction over claims concerning towing and garage fees, which were independent of court-imposed fines).
Accordingly, we recommend that the plaintiff's injunctive relief claim for an order vacating any court-imposed fines, liens, or other charges be dismissed for lack of jurisdiction under the Rooker-Feldman doctrine, pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure.
B. Younger Abstention
The defendants also argue that this court should decline to exercise jurisdiction over this action pursuant to the Younger abstention doctrine. See generally Younger v. Harris, 401 U.S. 37 (1971). Abstention is warranted when federal adjudication would disrupt an ongoing state criminal or civil proceeding. See Yang v Tsui, 416 F.3d 199, 201-02 (3d Cir. 2005).
Abstention under Younger is appropriate only if (1) there are ongoing state proceedings that are judicial in nature; (2) the state proceedings implicate important state interests; and (3) the state proceedings afford an adequate opportunity to raise federal claims. Even if the necessary three predicates exist, however, Younger abstention is not appropriate if the federal plaintiff can establish that (1) the state proceedings are being undertaken in bad faith or for purposes of harassment or (2) some other extraordinary circumstances exist, such as proceedings pursuant to a flagrantly unconstitutional statue, such that deference to the state proceeding will present a significant and immediate potential for irreparable harm to the federal interests asserted.Schall v. Joyce, 885 F.2d 101, 106 (3d Cir. 1989) (citations omitted).
But there is nothing before us in the pleadings or the record to suggest that there are currently any ongoing state judicial proceedings concerning the properties or Novitsky herself. On October 17, 2022, the plaintiff filed a pro se motion for preliminary injunctive relief with respect to two state-court cases concerning these properties, but those cases were both resolved when the state court entered judgment the very next day on October 18, 2022, and publicly available state court records indicate that the plaintiff did not appeal. (See Doc. 17.) Although the defendants' brief discusses the Younger abstention doctrine generally, it identifies no other ongoing state-court proceedings to justify such abstention. Moreover, to the extent Novitsky seeks to enjoin any future code enforcement action, Younger abstention is unwarranted. See Loftus v. Twp. of Lawrence Park, 764 F.Supp. 354, 358 (W.D. Pa. 1991).
Thus, we find the defendants' Younger abstention argument unpersuasive.
C. Duplicative Parties
In her amended complaint, the plaintiff has named four defendants: (1) the City of Hazleton; (2) its police department; (3) its code enforcement office; and (4) Nadine Sist, a city code enforcement officer, in both her official and personal capacities.
The 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. See Bonenberger v. Plymouth Twp., 132 F.3d 20, 25 n.4 (3d Cir. 1997); see also Jackson v. City of Erie Police Dep't, 570 Fed. App'x 112, 114 n.2 (3d Cir. 2014); Ballard v. City of Scranton, Civil Action No. 3:20-CV-1623, 2021 WL 469391, at *4 (M.D. Pa. Jan. 14, 2021); Graham-Smith v. Wilkes-Barre Police Dep't, No. 3:14cv2159, 2015 WL 2384274, at *2 (M.D. Pa. May 19, 2015).
Meanwhile, Nadine Sist is named as a defendant in both her personal capacity and her official capacity as a city code enforcement officer. But “[o]fficial capacity actions are redundant where the entity for which the individuals worked is named.” Highhouse v. Wayne Highlands Sch. Dist., 205 F.Supp.3d 639, 646 (M.D. Pa. 2016) (dismissing official capacity claims against municipal officials as redundant when the municipality was also named as a defendant). “As long as the government entity receives notice and an opportunity to respond, an official-capacity suit is, in all respects other than name, to be treated as a suit against the entity.” Kentucky v Graham, 473 U.S. 159, 165-66 (1985).
Accordingly, we recommend that all claims against the City of Hazleton Police Department, the City of Hazleton Code Enforcement Office, and Nadine Sist in her official capacity only be dismissed as duplicative of the plaintiff's claims against municipal defendant City of Hazleton, pursuant to the court's inherent authority to control its docket and avoid duplicative claims. See Comsys, Inc. v. City of Kenosha, 223 F.Supp.3d 792, 802 (E.D. Wis. 2016); Giannone v. Ayne Inst., 290 F.Supp.2d 553, 566 (E.D. Pa. 2003).
D. § 1983 Municipal Liability
The plaintiff seeks to hold the City of Hazleton liable under § 1983 for the allegedly unconstitutional conduct of Sist and other, unidentified city police officers and code enforcement officers.
“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. The City of Hazleton is such a municipality subject to liability as a “person” under § 1983. See id. At 694; DeLuca v. City of Hazleton, 396 F.Supp.3d 392, 412 (M.D. Pa. 2019).
But “[u]nder Monell, a municipality cannot be subjected to liability solely because injuries were inflicted by its agents or employees.” Jiminez v. AllAmerican 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 or corporation] 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 pro se amended complaint in this case does not identify any such policy or custom adopted or promulgated by the City of Hazleton. At most, it alleges that Novitsky contacted certain municipal officials about her properties on two occasions: in early 2017, Novitsky allegedly contacted non-party Charles Pedri, a supervising municipal code official, to protest the condemnation notices, and in February 2020, Novitsky allegedly emailed the city's chief of police to report burglaries and squatters at her properties. But these two isolated communications fall well short of alleging a plausible claim that “an official with authority has ratified the unconstitutional actions of a subordinate, rendering such behavior official for liability purposes.” See McGreevy v. Stroup, 413 F.3d 359, 367 (3d Cir. 2005). Indeed, neither of these two officials appears to qualify as “an official with authority” for Monell purposes, and the plaintiff has failed to allege any facts to the contrary. “Municipal liability attaches only where the decisionmaker possesses final authority to establish municipal policy.” Pembaur v. City of Cincinnati, 475 U.S. 469, 481 (1986) (emphasis added). Under Pennsylvania law and Hazleton municipal ordinances, it is the city's mayor-not its police chief nor any supervisory code enforcement official-who possesses final policy making authority with respect to public services and policing. See Santiago v. Warminster Twp., 629 F.3d 121, 134-35 (3d Cir. 2010); DeLuca, 396 F.Supp.3d at 412; Kocher v Larksville Borough, 926 F.Supp.2d 579, 60607 (M.D. Pa. 2013); see also 11 Pa. Cons. Stat. Ann. §§ 12002, 12007 (providing that a third-class city police chief is under the supervision of the city's mayor as a matter of law); Hazleton, Pa., Code §§ 11-9, -10, -13, -14 (providing that the directors of municipal departments of police and public services are subject to supervision of the city's mayor).
Under Pennsylvania law, the City of Hazleton is a third-class city operating under an “optional plan B”-or “strong mayor”-form of government. See City Council of City of Hazleton v. City of Hazleton, 578 A.2d 580, 581 (Pa. Commw. Ct. 1990).
Accordingly, we recommend that the plaintiff's § 1983 federal civil rights claims against the City of Hazleton be dismissed for failure to state a claim pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure.
E. State-Law Municipal Liability
The plaintiff also seeks to hold the City of Hazleton liable for common-law trespass, based on conduct by Sist and other, unidentified city police officers and code enforcement officers who entered into her home without consent or a warrant. But the city is immune from any such state-law claims: the Pennsylvania Political Subdivision Tort Claims Act (“PPSTCA”), 42 Pa Cons. Stat. Ann. §§ 8541, 8542, waives immunity only with respect to certain negligent acts, which do not include “acts or conduct which constitute[] a crime, actual fraud, actual malice or willful misconduct.” 42 Pa. Cons. Stat. Ann. § 8542(a)(2). The plaintiff's common-law trespass claim is an intentional tort and is based on allegations of willful conduct. Thus, the City of Hazleton is immune from suit for this claim under the PPSTCA. See Madar v. City of Philadelphia, Civ. A. No. 19-6033, 2021 WL 2156362, at *13 (E.D. Pa. May 27, 2021); Lakits v. York, 258 F.Supp.2d 401, 407 (E.D. Pa. 2003).
Accordingly, we recommend that the plaintiff's state-law trespass claims against the City of Hazleton be dismissed for failure to state a claim pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure.
F. Time-Barred Claims
What remains then are the plaintiff's § 1983 federal civil rights claims and state-law tort claims against Nadine Sist in her personal capacity. But all of these claims are barred by the applicable statutes of limitations.
The plaintiff's state-law trespass claims against Sist are subject to a two-year statute of limitations. See 42 Pa. Cons. Stat. Ann. § 5524(4); see also Davis v. Wells Fargo, 824 F.3d 333, 344 (3d Cir. 2016). Her § 1983 federal civil rights claims are subject to the same two-year statute of limitations. See Bougher v Univ of Pittsburgh, 882 F.2d 74, 78-79 (3d Cir. 1989) (citing 42 Pa. Cons. Stat. Ann. § 5524). “The two-year period begins as soon as the injury is sustained,” Mest v. Cabot Corp., 449 F.3d 502, 510 (3d Cir. 2006) (applying Pennsylvania law), or “when the plaintiff knew or should have known of the injury upon which the action is based,” Kach v. Hose, 589 F.3d 626, 634 (3d Cir. 2009) (applying federal law).
Here, all allegedly unconstitutional or tortious conduct by Sist occurred prior to March 31, 2020. Based on the allegations of the amended complaint, Sist entered Novitsky's property to inspect it, without a warrant or consent, on two occasions in July and December 2016. Although Sist and Novitsky had several subsequent encounters or conversations, often in the presence of unidentified police officers, the amended complaint does not aver that Sist entered into Novitsky's unoccupied home without a warrant or consent at any time on or after March 31, 2020.Nor does it allege that any such entry was concealed from Novitsky, who then learned about it only on or after March 31, 2020. The only conduct by Sist alleged to have occurred on or after March 31, 2020, was Sist's completion of a written report, which was originally mailed to Novitsky by the city solicitor in April 2020, and a copy was mailed to Novitsky by Sist herself in January 2022, but the mailing of this report to Novitsky simply does not itself constitute an unconstitutional or tortious act.
As noted above, the original complaint was filed on March 31, 2022. Any state-law trespass claims or § 1983 unlawful entry claims that accrued prior to March 31, 2020, are therefore time-barred. Novitsky also asserts a cursory § 1983 procedural due process claim based on the condemnation notices, but these notices were placed on the door of her Hazleton properties in late 2016 or early 2017, and the amended complaint does not allege that Sist placed the condemnation notices there or caused their placement. Moreover, the amended complaint fails to allege sufficient facts about the condemnation notices or her purported administrative appeal of them to plausibly state a due process claim.
In her opposition papers, Novitsky attempts to avoid the limitations bar by invoking the continuing violations doctrine. This doctrine creates a “narrow” and “equitable exception to the timely filing requirement.” Tearpock-Martini v. Borough of Schickshinny, 756 F.3d 232, 236 (3d Cir. 2014) (quoting Cowell v. Palmer Twp., 263 F.3d 286, 292 (3d Cir. 2001)). Under this doctrine, “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.” Montanez v. Sec'y Pa. Dep't of Corr., 773 F.3d 472, 481 (3d Cir. 2014) (quoting Cowell, 263 F.3d at 292). That is, “the court will grant relief for the earlier related acts that would otherwise be time barred.” Cowell, 263 F.3d at 292. The doctrine focuses solely on “continual unlawful acts, not continual ill effects from an original violation.” Weis-Buy Servs., Inc. v. Paglia, 411 F.3d 415, 423 (3d Cir. 2005) (quoting Cowell, 263 F.3d at 293). Only a defendant's “affirmative acts” count. Tearpock-Martini, 756 F.3d at 236 (quoting Cowell, 263 F.3d at 293); see also Cowell, 263 F.3d at 293 (“The focus of the continuing violations doctrine is on affirmative acts of the defendants.”). “[A] government official's refusal to undo or correct [a] harm [caused by the official's unlawful conduct] is not an affirmative act for purposes of establishing a continuing violation.” Id. at 236 n.8. Moreover, the continuing violation doctrine does not apply when the plaintiff “is aware of the injury at the time it occurred.” Morganroth & Morganroth v. Norris, Mclaughlin & Marcus, P.C., 331 F.3d 406, 417 n.6 (3d Cir. 2003).
Here, the alleged trespasses committed by Sist simply do not constitute a continuing violation. Sist allegedly entered into Novitsky's unoccupied Hazleton home without consent or a warrant to inspect its condition on two or more discrete occasions over a course of several years. No such entry by Sist is alleged to have occurred on or after March 31, 2020. No unconstitutional or tortious act by Sist herself is alleged to have occurred on or after March 31, 2020. Any injuries caused by Sist's alleged trespass or unlawful entry into the properties were complete when she departed the properties, all well before March 31, 2020. It is also clear from the allegations of the amended complaint that Novitsky learned of each of these incursions well before March 31, 2020.
We note that Novitsky has alleged that unidentified police officers interacted with her on March 31, 2020, commanding her to leave the premises and jamming the lock on the front door. In an entirely conclusory fashion, however, she has attributed this conduct to Sist, without alleging any facts whatsoever to plausibly suggest any personal involvement by Sist in this particular conduct.
Accordingly, we recommend that the plaintiff's § 1983 federal civil rights claims and state-law trespass claims against Nadine Sist in her personal capacity be dismissed for failure to state a claim pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure.
G. 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). This instruction applies equally to pro se plaintiffs and those represented by counsel. Alston v. Parker, 363 F.3d 229, 235 (3d Cir. 2004). Based on the allegations of the complaint, it is clear that amendment would be futile with respect to the plaintiff's time-barred claims, but it is not clear that amendment would be inequitable or futile with respect to any claims arising out of conduct occurring with the two-year period preceding commencement of this action. Accordingly, we recommend that the amended complaint be dismissed with leave to file a second amended complaint, provided, however, the second amended complaint be limited to claims arising out of conduct occurring on or after March 31, 2020.
IV. Recommendation
For the foregoing reasons, it is recommended that:
1. The defendants' Rule 12(b)(6) motion to dismiss (Doc. 13) be
GRANTED;
2. The plaintiff s injunctive relief claim for an order vacating any court-imposed fines, liens, or other charges be DISMISSED for lack of jurisdiction under the Rooker-Feldman doctrine, pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure;
3. The plaintiff's claims against the City of Hazleton Police Department, the City of Hazleton Code Enforcement Office, and Nadine Sist in her official capacity only be DISMISSED as duplicative of claims asserted against the City of Hazleton, pursuant to the court's inherent authority to control its docket and avoid duplicative claims;
4. The plaintiff's remaining § 1983 federal civil rights claims and state-law trespass claims against the City of Hazleton and Nadine Sist in her personal capacity only be DISMISSED for failure to state a claim pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure;
5. The plaintiff be granted leave to file a second amended complaint within a specified time period following dismissal of her amended complaint, provided, however, the second amended complaint be limited to claims arising out of conduct occurring on or after March 31, 2020; and
6. This matter be remanded to the undersigned for further proceedings.
NOTICE
NOTICE IS HEREBY GIVEN that the undersigned has entered the foregoing Report and Recommendation dated July 27, 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.