Opinion
CIVIL ACTION NO. 03-3261
September 9, 2003
ORDER AND MEMORANDUM
ORDER
AND NOW, this 9th day of September, 2003, upon consideration of defendants' Motion to Dismiss Plaintiffs Complaint (Document No. 8, filed August 11, 2003), and plaintiffs Response to Defendant's Motion to Dismiss Plaintiffs Complaint (Document No. 9, filed August 15, 2003), for the reasons set forth in the following Memorandum, IT IS ORDERED that defendant's Motion to Dismiss is GRANTED and plaintiff s prose Complaint is DISMISSED WITHOUT PREJUDICE to plaintiffs right to file and serve an amended complaint within thirty (30) days if warranted by the facts and applicable law. One copy of any such amended complaint shall be served on the Court (Chambers, Room 12613) when the original is filed.
MEMORANDUM
I. INTRODUCTION
Plaintiff Wayne O. Aultman, Jr. ("plaintiff'), a resident of Marcus Hook, Pennsylvania, alleges that James R. Padgett ("Padgett"), Mark Elliott ("Elliott"), William Stradley ("Stradley"), Brian Logue ("Logue"), Richard Jones ("Jones"), and Phillip Lebitore ("Lebitore"), officers of the Marcus Hook Police Department ("Marcus Hook Police") (collectively, "defendants"), "deni[ed] [him] due process of law under the equal protection clause of the 14th Amendment to the United States Constitution," Complaint at 1, because: (1) plaintiff received notice from the Marcus Hook Police that his car was declared abandoned and would be towed despite other owners of abandoned cars not receiving the same notice, and (2) defendants' `Tailed to do anything" with respect to a third party who threatened to harm plaintiff and his family and who stole plaintiffs car and dog. Id. at 2.
II. BACKGROUND
On April 25, 2003, plaintiff received a "Notion of Intent to Tow Abandoned Vehicle" ("Notice") from the Marcus Hook Police that was secured to his car. The Notice stated that the car had been declared abandoned — due to its expired registration — and would be towed from plaintiffs home if not removed within seven days in accordance with Pennsylvania law.
In response to that Notice, plaintiff sent a letter, dated May 11, 2003, to the Marcus Hook Police identifying abandoned vehicles within a ten-block radius of his home and requesting that the Marcus Hook Police apply the "LAWS of this Commonwealth and the [Ordinances] of this Borough . . . EQUALLY to ALL RESIDENTS of Marcus Hook" by "tagg[ing]" those vehicles with the same Notice that was secured to plaintiffs car. Id. at Ex. A. Plaintiff received no response to that letter and none of the vehicles he identified were "tagged."
Approximately three weeks after plaintiff sent the letter, he told Officer Jones, who was standing on a street corner, to "get those [abandoned] cars tagged and in compliance with the law," to which Officer Jones responded, "don't worry about it." Id. at 2. None of the defendants have since spoken to plaintiff about this issue. The vehicles identified by plaintiff in the letter, however, were later "brought into compliance" with Pennsylvania law. Pl.'s Resp. to Mtn. to Dismiss at 3.
Because plaintiff is proceeding pro se, the Court will treat plaintiffs Response to the Motion as part of the Complaint.
Plaintiff also filed complaints with the Marcus Hook Police "concerning harassing phone calls and numerous hang up calls" from unidentified individuals, but those complaints were never investigated. Id. In addition, plaintiff filed a police report with Officers Padgett and Elliott concerning a third party, Kenneth Mabie ("Mabie"), coming to plaintiff s home "and making threats of bodily harm against plaintiff and his family." No action was taken by the Marcus Hook Police pursuant to that report. Id. Mabie also allegedly stole plaintiffs dog and car from his home but "the [Marcus Hook] police department . . . failed to do anything about it." Id.
Plaintiff filed the instant pro se Complaint on June 4, 2003 seeking damages, a declaratory judgment, and a "FULL AND COMPLETE FEDERAL INVESTIGATION INTO THE ACTIVITIES of the Marcus Hook Police Department."Id., at 2. In the Complaint, plaintiff asserts that defendants' actions (and inaction) with respect to his car (and other abandoned vehicles) and Mabie denied him "due process of law under the equal protection clause of the 14th Amendment to the United States Constitution." Id. at 1. Defendants are being sued in their individual and official capacities. Defendants filed their Motion to Dismiss on August 11, 2003. The Motion was fully briefed on August 15, 2003.
III. STANDARD OF REVIEW
Rule 12(b)(6) provides that, in response to a pleading, a defense of "failure to state a claim upon which relief can be granted" may be raised by motion. FED.R.Civ.P. 12(b)(6). In considering a motion to dismiss under Rule 12(b)(6), a court must take all well pleaded facts in the complaint as true and view them in the light most favorable to the plaintiff. See Jenkins v. McKeithen, 395 U.S. 411, 421, 89 S.Ct. 1843, 1849, 23 L. Ed.2d404 (1969). Only those facts alleged in the complaint may be considered in deciding such a motion. See ALA. Inc. v. CCAIR. Inc., 29 F.3d 855, 859 (3d Cir. 1994). A complaint should be dismissed if "it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations." Hishon v. King Spalding, 467 U.S. 69, 73, 104 S.Ct. 2229, 2232, 81 L.Ed.2d 59 (1984). Plaintiff is proceeding pro se in this case. The Court is mindful of the instruction that it should broadly construe normal pleading requirements when handling pro se submissions. See Haines v. Kerner, 404 U.S. 519, 520 (1972) (holding pro se complaint "to less stringent standards than formal pleadings drafted by lawyers").
IV. DISCUSSION
The Court notes that plaintiff does not state in the pro se Complaint that he is pursuing his claims under 42 U.S.C. § 1983 and § 1985, but asserts that the Court's jurisdiction is predicated on, inter alia, those provisions. In light of the Court's duty to liberally construe a pro se complaint, it interprets plaintiffs allegations as asserting claims under 42 U.S.C. § 1983 and § 1985.
Plaintiff states that jurisdiction is also predicated on 42 U.S.C. § 1984 and 28 U.S.C. § 2201 and § 2202.
In their Motion defendants argue that: a) the Complaint fails to adequately allege any factual basis for plaintiffs claim against defendants under 42 U.S.C. § 1983; b) plaintiff has failed to allege a § 1985 cause of action; c) the Complaint does not allege a proper jurisdictional basis; and d) defendants are entitled to qualified immunity.
A. Plaintiff's Claim Under 42 U.S.C. § 1983
Section 1983 of Title 42 creates a cause of action against anyone who, acting under color of state law, deprives an individual of rights secured by the Constitution or by federal statute. See 42 U.S.C. § 1983. The statute is not a source of substantive rights, but merely provides "a method for vindicating federal rights elsewhere conferred." Graham v. Connor, 490 U.S. 386, 393-94 (1989) (quoting Baker v. McCollan, 443 U.S. 137, 144 n. 3 (1979)). In order to assert a cause of action under § 1983, a plaintiff must allege that "(1) the defendants acted under color of [state] law; and (2) their actions deprived [the plaintiff] of rights secured by the Constitution or federal statutes." Andersonv. Davila, 125 F.3d 148, 159 (3d Cir. 1997). In addition, § 1983 claims must be pled with a "modicum of factual specificity, identifying the particular conduct of defendants that is alleged to have harmed the plaintiffs."Ross v. Meagan. 638 F.2d 646, 650 (3d Cir. 1981) (citations omitted);Darr v. Wolfe. 767 F.2d 79, 80 (3d Cir. 1985).
As a threshold matter, a defendant cannot be liable under § 1983 unless he causes a constitutional injury. Thus, one of the most basic requirements of a § 1983 claim is that defendant personally cause — either by directing, or knowing of and acquiescing in — the deprivation of a plaintiffs constitutional rights. See Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1988). Thus, the first step in any § 1983 claim "is to identify the specific constitutional right allegedly infringed." Albright v. Oliver, 510 U.S. 266, 271 (1994). It appears that plaintiff is attempting to meet this burden by alleging in the pro se Complaint a deprivation of his equal protection rights-with respect to the Notice — and substantive due process rights — in connection with Mabie — under the Fourteenth Amendment.
The Court concludes that, with respect to the Notice, plaintiff has failed to assert a cause of action under § 1983. Plaintiff does not state, in the pro se Complaint or the motion papers, that his car was towed by the Marcus Hook Police; he only asserts that he was notified it would be towed. No harm therefore resulted from the Notice. Thus, in connection with that Notice, plaintiff has not alleged a constitutional injury on the present state of the record. Indeed, plaintiff does not challenge the legality of the Notice — i.e., by arguing that his car's registration had not expired — or the feet that his abandoned car was subject to being towed under Pennsylvania law; the gravamen of his complaint is that he received a Notice which was not issued to other owners of abandoned cars. That, without more, is not something on which a constitutional violation can be based.
Moreover, in connection with plaintiff s allegations regarding the Notice, he fails to assert a § 1983 claim with factual specificity that is sufficient to survive a motion to dismiss — he fails to adequately identify the particular conduct of the named defendants that allegedly injured him. There are no factual allegations linking the Notice with any of the Marcus Hook Police officers named as defendants in the instant pro se Complaint. Plaintiff does not identify, for example, which of the named defendants issued the Notice or secured the Notice to his car; rather he generally asserts that the Marcus Hook Police unfairly singled out his abandoned car for towing. Although plaintiff mentions a conversation he had with Officer Jones, that particular conversation, without more, did not deprive him of his constitutional rights.
As to plaintiffs allegations of defendants' failure to "do anything" with respect to Mabie, who, inter alia, threatened to harm plaintiff and his family, plaintiff fails to state a cause of action under § 1983. Plaintiff does not allege that Mabie carried out his threats and injured plaintiff or his family. Moreover, even assuming that Mabie actually harmed plaintiff or his family, "the Due Process Clauses generally confer no affirmative right to governmental aid, even where such aid may be necessary to secure life, liberty, or property interests of which the government itself may not deprive the individual." DeShaney v. Winnebago County Dep't of Social Services, 489 U.S. 189, 196, 109 S.Ct. 998, 1003, 103 L.Ed.2d 249 (1989). "As a general proposition, a state's failure to protect an individual against private violence does not constitute a violation of due process." Niciniv. Morra, 212 F.3d 798, 806 (3d Cir. 2000) (citing DeShaney, 489 U.S. at 202).
There are two exceptions to this rule — (1) cases in which there exists a "special relationship" between the state and an individual such that the state owes the individual an affirmative duty to protect the health and safety of such individual, see DeShaney, 48 9 U.S. at 197-201; D.R. v. Middle Bucks Area Vocational Tech. Sch., 972 F.2d 1364, 1369 (3d Cir. 1992) (enbane); and (2) cases in which the state has created a danger that causes harm to an individual See Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 907 (3d Cir. 1997); Kneipp v. Tedder, 95 F.3d 1199, 1204-05 (3d Cir. 1996). None of those exceptions applies to the instant case.
In addition, although plaintiff avers that Mabie stole his car and dog from his home and that "the police department has failed to do anything about it," Complaint at 2, there are no allegations that plaintiff filed a report with, or complained to, any of the named defendants concerning those offenses. In short, plaintiffs allegations with respect to Mabie suffer from the same deficiencies-lack of factual specificity — that plagued his allegations with respect to the Notice. Conclusory statements unsupported by factual allegations are not sufficient to support a cause of action under § 1983. Darr, 767 F.2d at 81.
B. Plaintiff's Claim Under 42 U.S.C. § 1985
Section § 1985(3) of Title 42 prohibits conspiracies predicated on "racial, or perhaps otherwise class-based, invidiously discriminatory animus." Griffin v. Breckenridge, 403 U.S. 88, 102 (1971). In order to state a claim under § 1985(3), a plaintiff must allege: (1) a conspiracy; (2) motivated by a racial or class based discriminatory animus designed to deprive, directly, or indirectly, any person or class of persons to the equal protection of the laws; (3) an act in furtherance of the conspiracy; and (4) an injury to person or property or the deprivation of any right or privilege of a citizen of the United States. Lake v. Arnold. 112 F.3d 682, 685 (3d Cir. 1997) (citations omitted).
To plead conspiracyunder § 1985(3), "a complaint must allege specific facts suggesting there was a mutual understanding among the conspirators to take actions directed toward an unconstitutional end."Lamb Foundation v. North Wales Borough. 2001 WL 1468401, at *15 (E.D. Pa. Nov. 16, 2001) (citations omitted). Plaintiff must also allege specific facts showing invidious, purposeful, and intentional discrimination. The Third Circuit has upheld dismissals of § 1985(3) claims where the conspiracy allegations were unsupported by specific facts:
With near unaminity, the courts have rejected complaints containing mere conclusory allegations of deprivations of constitutional rights under § 1985(3). A conspiracy claim based upon § 1985(3) requires a clear showing of invidious, purposeful and intentional discrimination between classes or individuals.Robinson v. McCorkle. 462 F.2d 111, 113 (3d Cir. 1972) (citations and internal quotes omitted).
In this case, plaintiff has failed to allege the existence of a conspiracy to deprive him of his constitutional rights, much less allege specific facts that, if proved, would establish that the named defendants were motivated by a racial or class based discriminatory animus or engaged in an "invidious, purposeful and intentional" conspiracy to deprive plaintiff of his rights under the Fourteenth Amendment. Even giving plaintiffs allegations a liberal interpretation because he is proceeding pro se, he has not pled a conspiracy claim under § 1985(3) sufficient to avoid dismissal.
C. Official Capacity Claims Under 42 U.S.C. § 1983
In a suit against a government official in his official capacity, "the real party in interest . . . is the government entity and not the named official. . . . " Hafer v. Melo, 502 U.S. 21, 25 (1991); see also Kentucky v. Graham. 473 U.S. 159, 166 (1985) ("[A]n official-capacity suit is in all respects other than name, to be treated as a suit against the entity. It is not a suit against the official personally, for the real part in interest is the entity."). The law applicable to suits against municipal entities is set forth in Monell v. Dep't of Soc. Servs. of the City of New York, 436 U.S. 658, 98 S. Q. 2018, 56 L. Ed.2d611 (1978).
Under Monell. a municipality may only be held liable under 42 U.S.C. § 1983 where the municipality itself — through an approved municipal policy or governmental custom — causes a constitutional violation; municipal liability cannot be based onrespondeat superior, liability imposed solely by reason of an employment relationship. See id., at 690-691, 694-695; Baker v. Monroe Twp., 50 F.3d 1186, 1191 (3d Cir. 1995). To state a municipal liability claim under Monell. a plaintiff must allege the existence of a municipal policy or custom and a causal link between the execution of that policy or custom and the injury suffered. See Losch v. Borough of Parkesburg, 736 F.2d 903, 910 (3d Cir. 1984). "Policy is made when a `decisionmaker possess[ing] final authority to establish municipal policy with respect to the action' issues an official proclamation, policy, or edict." Andrews v. City of Philadelphia. 895 F.2d 1469, 1480 (3d. Cir. 1990) (quotingPembaur v. City of Cincinnati 475 U.S. 469, 481, 106 S.Ct. 1292, 1299 (1986). Customs are' "practices of state officials . . . so permanent and well settled' as to virtually constitute law." Beck v. City of Pittsburgh, 89 F.3d 966, 971 (3d Cir. 1996) (quoting Andrews. 895 F.2d at 1480).
In this case, plaintiff does not allege the existence of an approved municipal policy or governmental custom causally linked to a constitutional injury. Accordingly, plaintiffs claims against defendants in their official capacities are dismissed.
V. CONCLUSION
For the foregoing reasons, the Court grants defendants' Motion to Dismiss and dismisses plaintiffs pro se Complaint without prejudice to his right to file an amended complaint within thirty (30) days if warranted by the facts and applicable law as set forth in this Memorandum.
In light of this determination, the Court need not reach defendants' arguments with respect to jurisdiction and qualified immunity.