Opinion
Civil Action 3:21-CV-2118
02-17-2022
BEVERLY ANN WOLFE, Plaintiff v. CARBON COUNTY HOUSING AUTHORITY, et al., Defendants
BRANN, C.J.
REPORT & RECOMMENDATION
WILLIAM I. ARBUCKLE U.S. MAGISTRATE JUDGE
I. INTRODUCTION
Beverly Ann Wolfe (“Plaintiff”) initiated this pro se civil action against the Carbon County Housing Authority and its employees because her application for residency in the Lansford Mid-Rise building was denied. Plaintiff asserts a single claim, under federal criminal statute 18 U.S.C. § 242.
Plaintiff has been granted leave to proceed in forma pauperis. Because she is proceeding in forma pauperis, Plaintiff is subject to the screening provisions in 28 U.S.C. § 1915(e). See Atamian v. Burns, 236 Fed.Appx. 753, 755 (3d Cir. 2007) (“the screening procedures set forth in 28 U.S.C. § 1915(e) apply to in forma pauperis complaints filed by prisoners and non-prisoners alike”). Under this statute, the Court is required to dismiss any action that is frivolous or malicious, fails to state a claim upon which relief can be granted, or seeks monetary relief against a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2)(B). See Collins v. Cundy, 603 F.2d 825, 828 (10th Cir. 1979) (“[T]here is no constitutional right to the expenditure of public funds and the valuable time of federal courts to prosecute an action which is totally without merit.”).
After reviewing Plaintiff's complaint, I find that the only claim asserted is based on frivolous legal theory. Accordingly, it is RECOMMENDED that:
(1) Plaintiff's complaint should be DISMISSED as frivolous pursuant to 28 U.S.C. § 1915(e)(2)(B)(i) without affording leave to amend;
(2) The Clerk of Court should be DIRECTED to close this case.
II. BACKGROUND & PROCEDURAL HISTORY
Plaintiff alleges that from 1985 through 2017, she resided in her own apartment. (Doc. 1, p. 4). In 2016, Plaintiff lost her position when her employer closed. (Doc. 1, p. 5). Since that time, Plaintiff has been unable to find stable employment. Id.
On June 6, 2017, Plaintiff lost her residence and moved back in with her brother. Id.
In July of 2019, Plaintiff applied for housing with the Schuylkill County Housing Authority. Id.
In October 2020, Plaintiff was approved for a “Renter's Choice Voucher.” Id.
Plaintiff alleges that she immediately “ported” her voucher from Schuylkill County to Carbon County. (Doc. 1, p. 5). Since “porting” to Carbon County, Plaintiff has had difficulty finding housing that would accept her voucher and alleges that employees of the Carbon County Housing Authority refused to help her find an acceptable apartment. On May 19, 2021, Defendant Rogers suggested
Plaintiff apply to Lansford Midrise. (Doc. 1, p. 10). Plaintiff alleges that she applied right away and was placed on a waiting list Id. Plaintiff alleges that she remained on that list for four months, and diligently called once a week every week to inquire about the status of her application. Id. Plaintiff was instructed each time that the staff did not know how many people were ahead of Plaintiff, and offered to call her when Plaintiff's name reached the top of the list. Id. Plaintiff alleges that Defendant Rogers hung up on her every single time when she suggested that they “move 1 person to another building due to [Plaintiff] being homeless.” (Doc. 1, p.11).
Attached to the complaint is email correspondence between Plaintiff and Defendant Rogers regarding her application of residency. This email states:
Beverly, as Margie stated, we do not have any vacancies at the Lansford Mid-Rise. You're just going to have to wait. You created this problem by not listening to me at the beginning. I advised you to put your name on the waiting list for the Lansford Mid-Rise. Your response was that the building was below you! You are your own worst enemy!3 (Doc. 1, p. 3).
On September 20, 2021, Plaintiff's application for residency at Lansford Mid-Rise was rejected because “[a]pplicant has engaged in abusive behavior towards the Carbon County Housing Authority staff.” (Doc. 1, p. 16).
Also attached to the complaint is a letter dated October 5, 2021, from the Carbon County Housing Authority, which states:
An informal hearing/discussion was held today with Beverly Wolfe regarding a rejection of their application for the Lansford Mid-Rise. As noted in the rejection letter, she was rejected for engaging in abusive behavior towards any Carbon County Housing Authority staff.
Beverly's application for the Lansford Mid-Rise has been rejected for the abusive behavior that she exhibited through her numerous calls/messages. The phone calls were taking place at all hours of the day. At times, there would be 20 or more phone calls on my voice mail when I would come into the office in the morning. She would then proceed to call throughout the day to the point that I would have to screen all my phone calls. During the last few weeks the phone messages turned vulgar.
As I explained to Beverly, the application would still be rejected. I was concerned that her behavior would affect the peaceful enjoyment of the other residents. I did state that I felt her behavior was off the rails. I wasn't convinced that I could trust her to not disturb other residents.
Should you find the above determination unsatisfactory, you have 10 days from the time of your receiving this summary to request a Formal Hearing before an assigned Hearing Officer.(Doc. 1, p. 29).
Also attached to the complaint is an October 22, 2021 “Note to File” by Defendant Brehm of the Carbon County Housing Authority, which states:
On October 5th 2021, an Informal Discussion was held between Patty Rogers, Properly Manager and Beverly Wolfe to discuss a recent application rejection for an apartment at Lansford Mid-Rise. The reason given for rejection was due to Ms. Wolfe's engaging in abusive behavior toward Carbon County Housing Authority Staff. The abusive
behavior had occurred over the phone, on voicemails, and in emails. With the completion of the Informal Discussion, the opportunity to request a Hearing with hearing Officer was provided.
Per the request of Ms. Wolfe, an Informal Hearing was to be scheduled for 10/29/2021. In preparation for this, information related to the request was to be provided by Ms. Wolfe using the proper Housing Authority forms. Ms. Wolfe failed to provide the completed informal Hearing request form and instead provided an email without providing all the required information. This email was received in my email inbox at 10/14/21, at 6:30pm. When attempting to follow-up with Ms. Wolfe to schedule their hearing and to collect the required information on 10/22/2021, Ms. Wolfe became aggressive and non-compliant, both through email and over the phone.
In attempting to accommodate Ms. Wolfe, I tried to obtain the required information from them to establish a need for an Informal Hearing, a necessary step to be completed prior to scheduling the hearing. At this point, Ms. Wolfe became argumentative and vulgar with me through multiple phone calls, including the use of various profanities and tones of an aggressive nature. Ms. Wolfe then continued to inundate my voicemail with ranting messages regarding their personal history and experience, while continuing to be aggressive and threatening to sue me and the Housing Authority.
These aggressive behaviors, being the same behaviors identified by Patty Rogers as the basis for the application rejection (and the focal point Informal Discussion), have been determined to be grounds for rendering a decision without proceeding with the Informal Hearing as I find that it is apparent Patty Roger's determination was based on actual behaviors, and that Patty's concern for the peaceful enjoyment of Housing Authority properly is valid. With this considered, as the Hearing Officer, it is my determination that the issue has been previously decided in another proceeding.
A decision, therefor, has been made in support of the Housing Authority for the rejection of the application of Beverly Wolfe for Lansford Mid-Rise due to their display of abusive behavior towards Carbon County Housing Authority staff and a concern for the peaceful enjoyment of Authority property by its residents.(Doc. 1, p. 30).
From May 2, 2021 through December 12, 2021 (while her application for residence at the Lansford Mid-Rise was pending), Plaintiff stayed at Woodspring Hotel in Wilkes-Barre, Pennsylvania. (Doc. 1, p. 4). Plaintiff alleges the cost of Plaintiff's lodging at the hotel was $20,365.48. (Doc. 1, p. 4).
On December 20, 2021, Plaintiff lodged a complaint in this Court. (Doc. 1). In that complaint, Plaintiff asserts claims against the following Defendants for violating 18 U.S.C. § 242:
(1) Carbon County Housing Authority;
(2) Patty Rogers;
(3) Weston T. Brehm; and
(4) Marge Zenon.
To support her claim, Plaintiff alleges that she did not use any profanity in her communications with Defendants until she had been waiting for over one year. (Doc. 1, p. 12). Plaintiff also alleges that, despite the file note and letter describing Plaintiff as “aggressive, ” no Defendant ever reported Plaintiff's behavior to the police department. Id. Plaintiff alleges that she is “not court appointed trash” and refuses to participate in an informal hearing presided over by an individual who is not an “elected official in the judicial system.” (Doc. 1, p. 13).
As relief, Plaintiff requests that she be reimbursed for the cost of her six-month hotel stay, and that she immediately be placed in an apartment unit in the Langford Mid-Rise.
III. LEGAL STANDARD
This Court has a statutory obligation to conduct a preliminary review of pro se complaints brought by litigants given leave to proceed in forma pauperis. Specifically, the Court is obliged to review the complaint in accordance with 28 U.S.C. § 1915(e)(2), which provides, in pertinent part:
(2) Notwithstanding any filing fee, or any portion thereof, that may have been paid, the court shall dismiss the case at any time if the court determines that -
(A) the allegation of poverty is untrue; or
(B) the action or appeal--
(i) is frivolous or malicious;
(ii) fails to state a claim on which relief may be granted; or
(iii) seeks monetary relief against a defendant who is immune from such relief.
In performing this mandatory screening function, the Court applies the same standard that is used to evaluate motions to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure, which provides that a complaint should be dismissed for “failure to state a claim upon which relief can be granted.” Fed.R.Civ.P. 12(b)(6). The United States Court of Appeals for the Third Circuit has observed the evolving standards governing pleading practice in the federal courts, stating that “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). “[A] complaint must do more than allege the plaintiff's entitlement to relief.” Id. at 211. It also “has to ‘show' such an entitlement with its facts.” Id.
To test the sufficiency of the complaint under Rule 12(b)(6), the court must conduct the following three-step inquiry:
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.” Id. Santiago v. Warminster Tp., 629 F.3d 121, 130 (3d Cir. 2010).
A complaint filed by a pro se litigant is to be liberally construed and ‘“however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers.'” Erickson v. Pardus, 551 U.S. 89, 94 (2007) (quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976)). Nevertheless, “pro se litigants still must allege sufficient facts in their complaints to support a claim.” Mala v. Crown Bay Marina, Inc., 704 F.3d 239, 245 (3d Cir. 2013). Thus, a well- pleaded complaint must contain more than mere legal labels and conclusions. Rather, a pro se complaint must recite factual allegations that are enough to raise the Plaintiff's claimed right to relief beyond the level of mere speculation, set forth in a “short and plain” statement of a cause of action.
IV. ANALYSIS
A. Plaintiff Cannot Pursue A Civil Claim Under 18 U.S.C. § 242
Section 242 of Title 18 of the United States Code provides that:
Whoever, under color of any law, statute, ordinance, regulation, or custom, willfully subjects any person in any State, Territory, Commonwealth, Possession, or District to the deprivation of any rights, privileges, or immunities secured or protected by the Constitution or laws of the United States, or to different punishments, pains, or penalties, on account of such person being an alien, or by reason of his color, or race, than are prescribed for the punishment of citizens, shall be fined under this title or imprisoned not more than one year, or both; and if bodily injury results from the acts committed in violation of this section or if such acts include the use, attempted use, or threatened use of a dangerous weapon, explosives, or fire, shall be fined under this title or imprisoned not more than ten years, or both; and if death results from the acts committed in violation of this section or if such acts include kidnapping or an attempt to kidnap, aggravated sexual abuse, or an attempt to commit aggravated sexual abuse, or an attempt to kill, shall be fined under this title, or imprisoned for any term of years or for life, or both, or may be sentenced to death.
This is a criminal statute. It is well-established that there is no private civil cause of action for damages under § 242. Pavalone v. Preservation Management, Inc., No. 3:18-CV-191, 2019 WL 1117931 at *3 (M.D. Pa. Jan. 8, 2019) (citing Shahin v. Darling, 606 F.Supp.2d 525, 538 (D..Del. 2009). Furthermore, there is “no federal right to require the government to initiate criminal proceedings.” Rodriguez v. Salus, Fed.Appx. 588, 590 (3d Cir. 2015); see also Colon-Montanez v. Pennsylvania Healthcare Serv. Staffs, 530 Fed.Appx. 115, 118 (3d Cir. 2013) (concluding that 18 U.S.C. § 242 “provide[s] no private right of action for use by a litigant such as Colon-Montanez”).
B. Leave to Amend Should be Denied
If a complaint is subject to dismissal for failure to state a claim, “a district court must permit a curative amendment unless such an amendment would be inequitable or futile.” Phillips v. County of Allegheny, 515 F.3d 224, 245 (3d Cir. 2008). Dismissals of frivolous claims, however, do not require leave to amend. Grayson v. Mayview State Hosp., 293 F.3d 103, 112-113 (3d Cir. 2002).
Courts have found that civil claims by pro se litigants asserted under 18 U.S.C. § 242 are legally frivolous because such claims are based on an undisputedly meritless legal theory. See Pavalone, 2019 WL 1117931 at *3 (citing Fake v. Philadelphia Ct. of Common Pleas, 2016 WL 6071365 at * 4 (E.D. Pa. Oct. 17, 2016); see also Jorge v. Torres, No. 18-14674, 2019 WL 2385942 at 3 (D.N.J. June 6, 2019). However, this dismissal should be without prejudice to Plaintiff's ability to initiate a new lawsuit in an appropriate forum asserting civil claims arising out of these facts.
V. RECOMMENDATION It is RECOMMENDED that:
(1) Plaintiff's complaint should be DISMISSED as frivolous pursuant to 28 U.S.C. § 1915(e)(2)(B)(i) without affording leave to amend;
(2) The Clerk of Court should be DIRECTED to close this case.
NOTICE OF LOCAL RULE 72.3
NOTICE IS HEREBY GIVEN that 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.