Rascoe et al v. Cody et al

BRIEF IN OPPOSITION re MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM

M.D. Pa.April 7, 2017

IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA ______________________________________________________________________________ MICHELLE RASCOE and RASCOE : COURTS, INC., : CIVIL ACTION Plaintiffs, : No.: 1:15-cv-00994-CCC-JFS : v. : : SUSQUEHANNA TOWNSHIP, : JURY TRIAL DEMANDED NEIL CODY, in his individual : capacity only and GEORGE DREES, : in his individual and official capacity, : : Defendants. : ______________________________________________________________________________ PLAINTIFFS’ RESPONSE TO DEFENDANTS’ MOTION TO DISMISS PLAINTIFFS’ THIRD AMENDED COMPLAINT PURSUANT TO FED. R. CIV. P. 12(b)(6) Pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure and L.R. 7.6, Plaintiffs, Michelle Rascoe and Rascoe Courts, Inc., by their undersigned counsel, submits the following response in opposition to Defendants Susquehanna Township’s and George Drees’ Motion to Dismiss Plaintiffs’ Third Amended Complaint Pursuant to Fed. R. Civ. P. 12(b)(6), and in support thereof states as follows: 1. Admitted. 2. Admitted. 3. Admitted. 4. Admitted. 5. Admitted. 6. Denied. The allegations contained in this paragraph are denied as conclusions of law. By way of further response, Plaintiffs incorporate their Brief in Opposition to Defendants’ Motion to Dismiss Plaintiffs’ Third Amended Complaint Pursuant to Fed. R. Civ. P. 12(b)(6) into this Motion by reference. Case 1:15-cv-00994-CCC-JFS Document 52 Filed 04/07/17 Page 1 of 4 7. Denied. The allegations contained in this paragraph are denied as conclusions of law. By way of further response, Plaintiffs incorporate their Brief in Opposition to Defendants’ Motion to Dismiss Plaintiffs’ Third Amended Complaint Pursuant to Fed. R. Civ. P. 12(b)(6) into this Motion by reference. 8. Denied. The allegations contained in this paragraph are denied as conclusions of law. By way of further response, Plaintiffs incorporate their Brief in Opposition to Defendants’ Motion to Dismiss Plaintiffs’ Third Amended Complaint Pursuant to Fed. R. Civ. P. 12(b)(6) into this Motion by reference. 9. Admitted. 10. Plaintiffs’ Third Amended Complaint speaks for itself and all allegations inconsistent therewith are denied. 11. Denied. The allegations contained in this paragraph are denied as conclusions of law. By way of further response, Plaintiffs incorporate their Brief in Opposition to Defendants’ Motion to Dismiss Plaintiffs’ Third Amended Complaint Pursuant to Fed. R. Civ. P. 12(b)(6) into this Motion by reference. 12. Denied. The allegations contained in this paragraph are denied as conclusions of law. By way of further response, Plaintiffs incorporate their Brief in Opposition to Defendants’ Motion to Dismiss Plaintiffs’ Third Amended Complaint Pursuant to Fed. R. Civ. P. 12(b)(6) into this Motion by reference. 13. Admitted. 14. Denied. The allegations contained in this paragraph are denied as conclusions of law. By way of further response, Plaintiffs incorporate their Brief in Opposition to Defendants’ Motion to Dismiss Plaintiffs’ Third Amended Complaint Pursuant to Fed. R. Civ. P. 12(b)(6) Case 1:15-cv-00994-CCC-JFS Document 52 Filed 04/07/17 Page 2 of 4 into this Motion by reference. 15. Denied. The allegations contained in this paragraph are denied as conclusions of law. By way of further response, Plaintiffs incorporate their Brief in Opposition to Defendants’ Motion to Dismiss Plaintiffs’ Third Amended Complaint Pursuant to Fed. R. Civ. P. 12(b)(6) into this Motion by reference. 16. Admitted. 17. Denied. The allegations contained in this paragraph are denied as conclusions of law. By way of further response, Plaintiffs incorporate their Brief in Opposition to Defendants’ Motion to Dismiss Plaintiffs’ Third Amended Complaint Pursuant to Fed. R. Civ. P. 12(b)(6) into this Motion by reference. 18. Denied. The allegations contained in this paragraph are denied as conclusions of law. By way of further response, Plaintiffs incorporate their Brief in Opposition to Defendants’ Motion to Dismiss Plaintiffs’ Third Amended Complaint Pursuant to Fed. R. Civ. P. 12(b)(6) into this Motion by reference. 19. Denied. The allegations contained in this paragraph are denied as conclusions of law. By way of further response, Plaintiffs incorporate their Brief in Opposition to Defendants’ Motion to Dismiss Plaintiffs’ Third Amended Complaint Pursuant to Fed. R. Civ. P. 12(b)(6) into this Motion by reference. 20. Admitted. 21. Denied. The allegations contained in this paragraph are denied as conclusions of law. By way of further response, Plaintiffs incorporate their Brief in Opposition to Defendants’ Motion to Dismiss Plaintiffs’ Third Amended Complaint Pursuant to Fed. R. Civ. P. 12(b)(6) into this Motion by reference. Case 1:15-cv-00994-CCC-JFS Document 52 Filed 04/07/17 Page 3 of 4 22. Denied. The allegations contained in this paragraph are denied as conclusions of law. By way of further response, Plaintiffs incorporate their Brief in Opposition to Defendants’ Motion to Dismiss Plaintiffs’ Third Amended Complaint Pursuant to Fed. R. Civ. P. 12(b)(6) into this Motion by reference. 23. Denied. The allegations contained in this paragraph are denied as conclusions of law. By way of further response, Plaintiffs incorporate their Brief in Opposition to Defendants’ Motion to Dismiss Plaintiffs’ Third Amended Complaint Pursuant to Fed. R. Civ. P. 12(b)(6) into this Motion by reference. A proposed Order consistent with this Motion is attached hereto. WHEREFORE, Plaintiffs Michelle Rascoe and Rascoe Courts, Inc., respectfully request that this Court issue an Order denying Defendants Susquehanna Township’s and George Drees’ Motion to Dismiss Plaintiffs’ Third Amended Complaint Pursuant to Fed. R. Civ. P. 12(b)(6) and permit Plaintiffs’ claims to proceed. Respectfully submitted, BY: _/s/ Faye Riva Cohen__________________ LAW OFFICE OF FAYE RIVA COHEN, P. C. FAYE RIVA COHEN, ESQUIRE Attorney ID: 18839 2047 Locust Street Philadelphia, PA 19103 (215) 563-7776 Attorney for Plaintiff Date: April 7, 2017 Case 1:15-cv-00994-CCC-JFS Document 52 Filed 04/07/17 Page 4 of 4 IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA ______________________________________________________________________________ MICHELLE RASCOE and RASCOE : COURTS, INC., : CIVIL ACTION Plaintiffs, : No.: 1:15-cv-00994-CCC-JFS : v. : : SUSQUEHANNA TOWNSHIP, : JURY TRIAL DEMANDED NEIL CODY, in his individual : capacity only and GEORGE DREES, : in his individual and official capacity, : : Defendants. : ______________________________________________________________________________ PLAINTIFFS’ BRIEF IN OPPOSITION TO DEFENDANTS SUSQUEHANNA TOWNSHIP’S AND GEORGE DREES’ MOTION TO DISMISS PLAINTIFFS’ THIRD AMENDED COMPLAINT PURSUANT TO FED. R. CIV. P. 12(B)(6) Case 1:15-cv-00994-CCC-JFS Document 52-1 Filed 04/07/17 Page 1 of 29 2 TABLE OF CONTENTS Procedural History …………………………………………………………………5 Statement of Facts………………………………………………………………….6 Questions Presented……………………………………………………………….14 Legal Standard…………………………………………………………………….15 Legal Argument…………………………………………………………………...16 A. Plaintiffs’ claims should not be dismissed as untimely under the statute of limitations…...………………………………………………16 B. Plaintiffs’ claims should not be dismissed as the principles of equitable tolling apply…………………………………………………17 C. Plaintiffs have plead sufficient facts to establish a procedural due process claim...…………………………………………………………19 D. Plaintiffs have plead sufficient facts to establish a substantive due process claim…………………………………………………………...23 E. Plaintiffs’ Monell claims should not be dismissed…………………...24 F. Defendants improperly raised qualified immunity in a Rule 12(b)(6) Motion to Dismiss….…………………………………………………..26 Conclusion…………………………………………………………………...……26 Case 1:15-cv-00994-CCC-JFS Document 52-1 Filed 04/07/17 Page 2 of 29 3 TABLE OF AUTHORITIES CASES Ashcroft v. Iqbal, 556 U.S. 662 (2009)……………………………………………16 Aubrey v. City of Bethlehem, Fire Dep’t, 466 F. App’x 88 (3d Cir. 2012)…….…..15 Alvin v. Suzuki, 227 F.3d 107 (3d Cir. 2000)…………………………………...…20 Baldayaque v. United States, 338 F.3d 145 (2d Cir. 2001)…………………….….18 City of Canton, Ohio v. Harris, 489 U.S. 378 (1989)………..……..…………24, 26 Holland v. Florida, 560 U.S. 631 (2010)………………………...……………….17 Fowler v. UPMC Shadyside, 578 F.3d 203 (3d Cir. 2009)……………………..…15 Independent Enters. Inc. v. Pittsburgh Water & Sewer Auth. 103 F.3d 1165 (3d Cir. 1997)………………………………………………………………………………23 Jenkins v. Superintendent of Laurel Highlands, 705 F.3d 80 (3d Cir. 2013)……..17 LaCava v. Kyler, 398 F.3d 271 (3d Cir. 2005)…………………………….………17 McTernan v. City of York, 577 F.3d 521 (3d Cir. 2009)…………………….……..15 Midnight Sessions, Ltd. v. City of Philadelphia, 945 F.2d 667 (3d Cir. 1991)…....23 Miller Home Inc., v. Department of Public Welfare, 556 A.2d 1 (Pa. Cmwlth. 1992)………………………………………………………………..20 Monell v. Dept. of Soc. Servs., 436 U.S. 658 (1978)……………………….….25,26 Newland v. Reehorst, 328 Fed.Appx. 781 (3d Cir. 2009)…..…………………….26 Pace v. DiGuglielmo, 544 U.S. 408 (2005)…………………………………….…17 Case 1:15-cv-00994-CCC-JFS Document 52-1 Filed 04/07/17 Page 3 of 29 4 Phillips v. Cnty. of Alleghany, 515 F.3d 224 (3d Cir. 2008)………………………15 Rogin v. Bensalem Tp., 616 F.2d 680 (3d Cir. 1980)……………………………..20 Spitsyn v. Moore, 345 F.3d 796, 800-02 (9th Cir. 2003)…………………………..18 Thomas v. Independence Tp., 463 F.3d 285 (3d Cir. 2006)……………………….26 United States v. Martin, 408 F.3d 1089, 1096 (8th Cir. 2005)…………………….18 Warren v. Sanders, No. 1:12-cv-1819, 2015 WL 778208 (M.D.P.A. 2015)…..…17 Whittle v. Local 641, Intern. Broth. of Teamsters, 56 F.3d 487 (3d Cir. 2005)……16 Williamson Cnty Regional Planning Comm’n v. Hamilton Bank of Johnson City, 473 U.S. 172 (1985)……………………………………………16 Woodwind Estates, Ltd. v. Gretkowski, 205 F.3d 118 (3d Cir. 2000)……….……..23 Case 1:15-cv-00994-CCC-JFS Document 52-1 Filed 04/07/17 Page 4 of 29 5 Plaintiffs Michelle Rascoe (“Rascoe”) and Rascoe Courts, Inc. have brought claims against Defendants Susquehanna Township, Neil Cody, and George Drees under 42 U.S.C. §1983 for violations of Plaintiffs’ procedural and substantive due process rights under the 5 th and 14 th Amendments of the United States Constitution in a Third Amended Complaint dated March 10, 2017. In response, Defendants Susquehanna Township and George Drees have filed a Motion to Dismiss Plaintiffs’ Third Amended Complaint Pursuant to Fed. R. Civ. P. 12(B)(6). For all of the following reasons, Plaintiffs respectfully request that Defendants’ Motion be denied. I. PROCEDURAL HISTORY Plaintiffs Michelle Rascoe and Rascoe Courts, Inc. commenced this action by filing a Complaint on May 21, 2015. Plaintiffs filed an Amended Complaint on May 26, 2015. Counsel for Plaintiffs entered their appearance on January 15, 2016. Plaintiffs thereafter filed a Second Amended Complaint on February 16, 2016. Defendants Susquehanna Township and George Drees filed a motion to dismiss on April 22, 2016. (ECF 29). The motion to dismiss was granted on the basis that Plaintiffs’ claims were time-barred, but Plaintiffs were granted leave to amend their Complaint to state claims sufficient to establish equitable tolling of the statute of limitations. (ECF 41). Plaintiffs thereafter filed a Third Amended Complaint on March 10, 2017. (ECF 42). Case 1:15-cv-00994-CCC-JFS Document 52-1 Filed 04/07/17 Page 5 of 29 6 In Count I of Plaintiffs’ Third Amended Complaint Plaintiffs assert violations of 42 U.S.C. §1983 (Procedural Due Process Against All Defendants). Count II of Plaintiffs’ Third Amended Complaint asserts violations of 42 U.S.C. §1983 (Substantive Due Process Against All Defendants). Plaintiffs seek compensatory, punitive and liquidated damages as well as attorneys’ fees, costs of suit, expert fees and all damages permitted by law. II. FACTUAL BACKGROUND Defendant Rascoe and her husband Larry Rascoe are the sole officers of Rascoe Courts, Inc., a personal care facility. On November 19, 2012 Susquehanna Township Fire Marshal and Defendant George Drees (“Drees”) and Susquehanna Township Health Inspector Lynn Roche (“Roche”) conducted an inspection of the building at 3251 Butler Street (“Building”), a vacant former 78-101 bed assisted living facility that was in the process of being acquired by Plaintiffs for use as a personal care home. (ECF 42, ¶8). Due to the building’s age and vacant status, Drees cited numerous violations and directed Rascoe to remedy these violations before Drees again inspected the building. (Id.). Accordingly, Rascoe retained Simplex Grinnell LLP (“Simplex Grinnell”) to complete a fire alarm inspection and ensure that the building was compliant with all fire regulations. (ECF 42, ¶ 9). On December 18, 2012 Simplex Grinnell performed the requested services and issued a report stating that “no deficiencies” were found. (Id.). Case 1:15-cv-00994-CCC-JFS Document 52-1 Filed 04/07/17 Page 6 of 29 7 On December 21, 2012 Roche and Drees again inspected the Building. Drees saw Simplex Grinnell’s inspection report and called Simplex Grinnell to confirm the details of the report. (ECF 42, ¶10). Also, Roche determined that prior health violations had been corrected. (Id.). With the exception of a pending and later approved elevator inspection report, Drees reported that the previously noted violations were corrected. (Id.). On February 26, 2013 Department of Human Services (“DHS”) Adult Residential Licensing Unit Director Ronald Melusky (“Melusky”) granted Rascoe Courts, Inc. a new home Provisional Certificate. (ECF 42, ¶13). The license stated that the Building was in substantial compliance with applicable state regulations for personal care homes. (Id.). Per the terms of the Pennsylvania Poor Persons and Public Welfare law, personal care homes, such as the building owned and operated by Rascoe Courts, are issued a Provisional Certificate for a period of six (6) months when there has been substantial, but not complete, compliance with all of the applicable statutes, ordinances, and the applicant has taken appropriate steps to correct deficiencies. See id; 62 P.S. § 1008(a)-(d). During the course of these six (6) months, the Building owned by Rascoe Courts was subject to periodic inspections by DHS authorities. See 62 P.S. §1016. In the event that the Building became fully compliant, DHS was required to immediately issue a regular license. See id. In the Case 1:15-cv-00994-CCC-JFS Document 52-1 Filed 04/07/17 Page 7 of 29 8 event that the Building was not fully compliant, DHS was required to issue Rascoe Courts written notification so that action could be taken to bring the facility into compliance. See 62 P.S. §1026(a). On April 3, 2013 DHS Inspectors Rebecca Riel (“Riel”) and Ronald Minnich (“Minnich”) came to the Building because of a complaint of neglect concerning a resident of the building named James Leone. James Leone did not make the complaint himself, and neither Riel, Minnich, nor anyone else from DHS ever provided Rascoe with any details of the complaint, such as its source or the nature of the allegations. (ECF 42 ¶ 14). On April 16, 2013 Cody and Minnich again came to the Building. The ostensible purpose of their visit was to follow up on the alleged neglect claim concerning Mr. Leone. (ECF 42 ¶ 16). For unknown reasons, the fire alarm went off shortly after they entered the building. (Id.). After everyone was evacuated in accordance with standard protocol, the fire alarm was silenced. (Id.). Assistant Fire Chief Ralph Parsons (“Parsons”), a subordinate of Drees, who had come to the building in response to the fire alarm, told Rascoe that the strobe light issue would need to be fixed. (Id.). Larry Rascoe immediately called Simplex Grinnell to arrange for the issue to be fixed, and began to conduct a fire watch. (Id.). Cody and Minnich never spoke with Parsons regarding the fire safety issue. (Id.). After everyone returned to the building, Plantiff Rascoe’s mother, who Case 1:15-cv-00994-CCC-JFS Document 52-1 Filed 04/07/17 Page 8 of 29 9 volunteered at the Building, passed out due to breathing difficulties caused from her chronic obstructive pulmonary disease. (ECF 42 ¶19). Rascoe left to accompany her mother to the hospital. (Id.). Cody and Minnich remained at the Building. (Id.). Rather than speaking to Mr. Leone, or requesting records from Mr. Rascoe, Defendant Cody and Minnich proceeded to walk through the Building. (Id.). When they were ready to leave, Defendant Cody told Rascoe, via telephone, to keep Cody updated on the strobe light situation. (Id.). The next day, April 17, 2013, Cody, Riel, and Minnich again appeared at the Building and proceeded to walk around for several hours. They failed to provide Rascoe with an explanation as to why they were walking through the Building. (ECF 42 ¶ 20). At Cody’s request, Roche and Drees appeared at the building at approximately 1:00 P.M. (Id.). Although the strobe lights continued to go off, Simplex Grinnell were scheduled to arrive later that day to fix the problem within the requisite forty-eight (48) hour period provided by 55 Pa. Code §2600.130(g). (Id.). Nevertheless at 4:00 P.M, Drees informed Rascoe that he was recommending that the Building be closed. (Id.). Cody subsequently informed Plaintiffs and the residents of the Building that he was going to close down the Building for “multiple issues.” (Id.). However, Cody repeatedly refused to specify the issues, despite requests from Rascoe and her residents. (Id.). No Emergency Removal Order was issued to Rascoe Courts, Inc. by Cody or anyone else, as is standard Case 1:15-cv-00994-CCC-JFS Document 52-1 Filed 04/07/17 Page 9 of 29 10 practice for the sudden removal of residents from a personal care home. (ECF 42 ¶ 21). Accordingly, Rascoe was denied the opportunity to be heard before residents were removed from the Building, and was not provided notice of the alleged violations leading to the emergency removal. Meanwhile, Roche informed Rascoe that the building passed the health inspection and that Roche would not recommend closure. (ECF 42 ¶ 22). However, Roche stated that if DHS revoked the Building’s provisional license, then she would have to revoke the Building’s health license. (Id.). Simplex Grinnell technician Matthew Concannen arrived at 6:00 P.M. on April 17, 2013 in order to repair the strobe lights. (ECF 42 ¶ 23). Rascoe called Drees to let him know that the strobe lights were being repaired within the requisite time period, and asked Drees to speak with Concannen. (Id.). Drees refused to do so. (Id.). Rascoe then turned on her cell phone’s speaker function, and Concannen told Drees that the strobe lights were fixed by a simple reset. (Id.). Drees ignored Concannen’s comment. Rascoe then requested that Concannen provide written confirmation that the strobe light issue had been resolved so that she could present it to Cody, who was still at the Building. (Id.). However, Cody refused to accept the written confirmation. (Id.). Upon leaving the Building, Drees reported the alleged fire code violations to the Dauphin County Municipal Court. (ECF 42 ¶ 24). On April 19, 2013 Rascoe Case 1:15-cv-00994-CCC-JFS Document 52-1 Filed 04/07/17 Page 10 of 29 11 was before Magisterial District Judge James Lenker on a different matter. Drees was in the courthouse that same day. (ECF 42 ¶ 26). When Rascoe was before Judge Lenker, Drees intervened and brought the alleged fire code violations to Judge Lenker’s attention. (Id.). Judge Lenker said that he would look into the allegations and provide a ruling at a later date. (Id.). On April 22, 2013 Rascoe received a letter from Melusky. (ECF 42 ¶ 27). The letter stated that the Building’s license would be revoked in eleven (11) days unless Rascoe appealed the revocation. (Id.). In the event that Rascoe appealed, the letter stated that the revocation would become final upon issuance of a decision by the Bureau of Hearings and Appeals. Rascoe administratively appealed the decision to revoke the Building’s license on April 29, 2013. (ECF 42 ¶ 28). During the pendency of the appeal, Rascoe Courts continued to operate and care for its residents, and continued to operate under its Provisional I License. (Id.). Over these weeks, Defendants Cody and Drees continued to make visits to Rascoe Courts to determine whether Rascoe Courts should be issued a provisional certificate of compliance, and Rascoe Courts continued to submit plans of corrections to demonstrate substantial compliance with applicable law. (ECF 42 ¶¶ 28, 29). On July 11, 2013, Rascoe hired attorney Gerald Robinson to represent Rascoe Courts, Inc. in its appeal of DHS’ decision to revoke its license. (ECF 42 ¶ Case 1:15-cv-00994-CCC-JFS Document 52-1 Filed 04/07/17 Page 11 of 29 12 32). That day, Rascoe gave Mr. Robinson all of the documentary material she had gathered in preparation of her case. (Id.). Mr. Robinson advised Rascoe that she had to wait for the administrative appeal to be resolved before she could bring a lawsuit against the State and Township individuals who were involved. (Id.). Throughout September, October, November, and December 2013, Rascoe made multiple efforts to contact Mr. Robinson by telephone, email, and United States mail to inquire about the status of her case. (ECF 42 ¶ 33).While Mr. Robinson’s staff assured Rascoe that Mr. Robinson would be in contact with her, he never reciprocated Rascoe’s efforts to communicate. (Id.). Frustrated by his inaction and failure to communicate, Rascoe fired Mr. Robinson on December 24, 2013. (Id.). On December 27, 2013 Rascoe sent a letter to Administrative Law Judge Andrew Maloney, (“ALJ Maloney”) who was assigned the appeal of the DHS decision, explaining her attenuating circumstances and requesting a thirty (30) day continuance so that she could hire a new attorney. (ECF 42 ¶ 34). Rascoe also requested that she be provided with a copy of the materials that her former attorney had already submitted regarding her case. (Id.). ALJ Maloney never responded to these requests. (Id.). When Rascoe followed up with a telephone call to ALJ Maloney’s office, his receptionist suggested that Rascoe appear at her hearing date and request a continuance at that time. (Id.). Case 1:15-cv-00994-CCC-JFS Document 52-1 Filed 04/07/17 Page 12 of 29 13 Accordingly, Rascoe appeared at the hearing on January 8, 2014. Rascoe explained her circumstances to ALJ Maloney and again requested a continuance so that she could secure an attorney. (ECF 42 ¶35). She also explained that her prior attorney had much of the evidence that she needed to support her position. ALJ Maloney, for unknown reasons, denied the request, and required her to proceed pro se. (Id.). At the hearing Plaintiffs assert that Cody and Drees made unsubstantiated, fabricated allegations against Rascoe Courts, Inc. (ECF 42 ¶ 36). Rascoe was forced to defend against these accusations without the benefit of legal counsel and evidence that would have acquitted Rascoe Courts, Inc. of the allegations that had been made. On May 29, 2014 ALJ Maloney issued an adjudication recommending that the appeal be denied. (ECF 42 ¶40). This adjudication was based not only on several inaccurate findings of fact, but was based on deliberate falsehoods that Plaintiffs assert were made by Drees, Cody, Minnich, and Riel. ALJ Maloney’s decision was both the culmination and another example of staggering procedural due process violations against Plaintiffs who were repeatedly denied proper notice of the allegations that were made against them, and a fair hearing to challenge those allegations. Case 1:15-cv-00994-CCC-JFS Document 52-1 Filed 04/07/17 Page 13 of 29 14 III. QUESTIONS PRESENTED 1. Whether Plaintiffs’ claims must be dismissed as the statute of limitations has expired? Suggested Answer: No. 2. Whether Plaintiffs’ claims must be dismissed as no tolling provisions apply? Suggested Answer: No. 3. Whether Plaintiffs’ claims for violations of their procedural due process rights against the Township Defendants fail as a matter of law? Suggested Answer: No. 4. Whether Plaintiffs’ claim for violations of their substantive due process rights fail as a matter of law? Suggested Answer: No. 5. Whether Plaintiffs’ municipal liability claims against the Township Defendants should be dismissed as a matter of law? Suggested Answer: No. 6. Whether Defendant Drees is entitled to qualified immunity? Suggested Answer: No. Case 1:15-cv-00994-CCC-JFS Document 52-1 Filed 04/07/17 Page 14 of 29 15 IV. LEGAL STANDARD In determining whether a complaint satisfies the pleading standards contained in Fed. R. Civ. P. 8, the reviewing court must view “all well-pleaded allegations of the complaint ... as true.” McTernan v. City of York, 577 F.3d 521, 526 (3d Cir. 2009). The allegations must further be “interpreted in the light most favorable to the plaintiffs, and all inferences must be drawn in [their] favor”. Aubrey v. City of Bethlehem, Fire Dep't, 466 F. App'x 88, 91 (3d Cir. 2012). The court, however, is not required to regard legal conclusions contained in the complaint. Fowler v. UPMC Shadyside, 578 F.3d 203, 210-11 (3d Cir. 2009). Upon viewing Plaintiffs’ complaint in this manner, the reviewing court may only dismiss it if the facts alleged do not sufficiently show that “plaintiff has a plausible claim for relief.” Id. at 211 (internal citations omitted). A complaint “may not be dismissed merely because it appears unlikely that the plaintiff can prove those facts or will ultimately prevail on the merits.” Phillips v. Cnty. of Allegheny, 515 F.3d 224, 231 (3d Cir. 2008). Nor may a complaint be dismissed simply because the plaintiff cannot establish the elements of a prima facie case. See Fowler, 578 F.3d at 213 (“[e]ven post-Twombly, it has been noted that a plaintiff is not required to establish the elements of a prima facie case”). A plaintiff must simply plead enough facts “to raise a reasonable expectation that discovery will reveal evidence” showing “that the pleader is entitled to relief.” Ashcroft v. Case 1:15-cv-00994-CCC-JFS Document 52-1 Filed 04/07/17 Page 15 of 29 16 Iqbal, 556 U.S. 662, 679 (2009). V. LEGAL ARGUMENT A. Plaintiffs’ claims should not be dismissed as untimely under the statute of limitations. Plaintiffs’ allege that they were denied procedural protections after Defendants failed to consider evidence demonstrating that Plaintiffs had cured certain alleged safety violations before their personal care home’s provisional license was revoked. While a cause of action accrues “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), a cause of action must also be sufficiently ripe before one can maintain suit. See Whittle v. Local 641, Intern. Broth. of Teamsters, 56 F.3d 487, 489 (3d Cir. 2005). Accordingly, administrative actions must be final before they are judicially reviewable. See Williamson Cnty Regional Planning Comm’n v. Hamilton Bank of Johnson City, 473 U.S. 172, 192 (1985). DPW mailed a letter dated April 23, 2013 stating that Rascoe Court’s license to operate would be revoked in eleven (11) days, or if Plaintiffs appealed, “upon issuance of a decision by the Bureau of Hearings and Appeals.” ( ECF 42 ¶ 27). See also 62 P.S. § 1087. Because Plaintiffs appealed to the Bureau of Hearings, the license revocation was never finalized and Rascoe Courts continued to operate and DPW officials continued to make periodic inspection visits to Rascoe Courts. (ECF 42 ¶ 27). Rascoe Courts continued to operate up through May Case 1:15-cv-00994-CCC-JFS Document 52-1 Filed 04/07/17 Page 16 of 29 17 29, 2014, and accordingly Plaintiffs’ statute of limitations did not accrue until that date. B. Plaintiffs’ claims should not be dismissed as the principles of equitable tolling apply. A plaintiff is entitled to equitable tolling if she shows that “(1) that [s]he has been pursuing [her] rights diligently, and (2) that some extraordinary circumstance stood in [her] way and prevented timely filing.” Holland v. Florida, 560 U.S. 631, 649 (2010) (quoting Pace v. DiGuglielmo, 544 U.S. 408 (2005)). There are no bright lines in determining when equitable tolling is warranted, and courts should "favor flexibility over adherence to mechanical rules. Ross v. Varano, 712 F.3d 784, 799 (3d Cir. 2013). “The diligence required for equitable tolling purposes is reasonable diligence.” See Holland 560 U.S. at 653. The requirement of reasonable diligence does not pertain solely to the filing of the federal action. Rather, it is an obligation that exists during the period that the litigant is exhausting state court remedies as well. See LaCava v. Kyler, 398 F.3d 271, 277 (3d Cir. 2005). Courts recognize that attorney abandonment is an extraordinary circumstance that warrants equitable tolling. See Jenkins v. Superintendent of Laurel Highlands, 705 F.3d 80, 39 (3d Cir. 2013); Warren v. Sanders, No. 1:12- cv-1819, 2015 WL 778208 at *4 (M.D.P.A. 2015) (finding that litigant established extraordinary circumstances for equitable tolling purposes where attorney ceased Case 1:15-cv-00994-CCC-JFS Document 52-1 Filed 04/07/17 Page 17 of 29 18 communication and failed to respond to written requests concerning status of case). See also United States v. Martin, 408 F.3d 1089, 1096 (8th Cir. 2005); Spitsyn v. Moore, 345 F.3d 796, 800-02 (9th Cir. 2003); Baldayaque v. United States, 338 F.3d 145, 152-53 (2d Cir. 2001). Plaintiffs were reasonably diligent for purposes of equitable tolling. Plaintiffs hired an attorney to contest the impeding revocation of their Provisional Certificate on July 11, 2013. After retaining this attorney, Plaintiffs entrusted all of the documentary evidence that they had gathered in support of their defense. For the next four (4) months, Plaintiffs attempted to contact their attorney in order to discuss the status of their case. Although the attorney’s administrative staff goaded Plaintiffs into believing that their attorney was diligently working on their behalf, the attorney never reciprocated Plaintiffs’ efforts to remain in contact. Frustrated, Plaintiffs fired their attorney on December 24, 2013. Given their particular circumstances, Plaintiffs acted diligently in pursuing their rights. After terminating their attorney, Plaintiffs quickly wrote to ALJ Maloney and requested a continuance given the fact that they were without legal representation, and without documentary evidence. Plaintiffs also asked that the administrative law judge assist them in retrieving the documentary evidence that their former attorney retained. The administrative judge did not respond to the Case 1:15-cv-00994-CCC-JFS Document 52-1 Filed 04/07/17 Page 18 of 29 19 Plaintiffs’ request until the day of the hearing, when he denied the request in its entirety. Plaintiffs’ failure to file the instant action until May 21, 2015 is easily explained by the fact that their former attorney had abandoned them, yet still retained all documentary evidence relevant to their case. When Plaintiffs attempted to secure legal representation elsewhere, they were unable to present potential attorneys with the documentary evidence that potential attorneys requested in order to evaluate their case. Even assuming that Plaintiffs’ statute of limitations accrued on April 29, 2013 - and not at some later date - Plaintiffs instituted this action a mere twenty- six (26) days past their deadline. Accordingly, this Court must merely find that given the extraordinary circumstance of attorney abandonment, Plaintiffs were nevertheless diligent in reasonably pursuing their case for three-and-a-half weeks. Additionally, prejudice to Defendants is minimal. As Defendants were active participants in Plaintiffs’ appeal before the Bureau of Hearings and Appeals, there is minimal risk that tolling amounts to an unfair surprise that has implicated Defendants’ ability to defend themselves. C. Plaintiffs have plead sufficient facts to establish a procedural due process claim. To state a claim under §1983 for deprivation of procedural due process rights, a plaintiff must allege that (1) she was deprived of the individual interest Case 1:15-cv-00994-CCC-JFS Document 52-1 Filed 04/07/17 Page 19 of 29 20 that is encompassed within the Fourteenth Amendment’s protection of “life, liberty and property,” and (2) the procedures available to him did not provide “due process of law.” Alvin v. Suzuki, 227 F.3d 107, 116 (3d Cir. 2000). Before the government can deprive a landowner of a property interest, it must provide due process. See Rogin v. Bensalem Tp., 616 F.2d 680, 694 (3d Cir. 1980). Defendants denied Plaintiffs’ procedural due process by refusing to consider Plaintiffs’ corrective action of supposed health and safety violations. Defendants mistakenly rely on Aggie v. Dep’t of Pub. Welfare, 2014 Pa. Commw. Unpub. LEXIS 745 (Pa. Cmwlth. 2014) to argue that Plaintiffs were provided proper procedural protections. A fundamental difference between Plaintiffs and Aggie, is that Plaintiffs held a Provisional Certificate of Compliance (“Provisional Certificate”) and not, as in Aggie, a Certificate of Compliance (“Full Certificate”). When one holds a Provisional Certificate, and where there has been “substantial but not complete compliance” with all of the applicable regulations, “and when the applicant has taken appropriate steps to correct deficiencies [DPW] shall issue a provisional license for a specified period of not more than six months…” See 62 P.S. §1008. Accordingly, Provisional Certificates, unlike Full Certificates, give their holders an opportunity to present evidence of corrective action before the Department of Public Welfare (“DPW”) refuses to either renew the Provisional Certificate or issue the Full Certificate. See 62 P.S. §1026(a); Miller Home Inc., v. Case 1:15-cv-00994-CCC-JFS Document 52-1 Filed 04/07/17 Page 20 of 29 21 Department of Public Welfare, 556 A.2d 1, 3 (Pa. Cmwlth. 1992) (noting that license holders have a qualified right to an opportunity to correct violations). Defendants did not give Plaintiffs this opportunity. (ECF 42 ¶ 25) (“Rascoe Courts thus was not provided with the opportunity to correct the alleged violations within the requisite time period”). Additionally, when DPW notified Plaintiffs of their intention to revoke their Provisional Certificate via the April 22, 2013 letter, the revocation became final eleven (11) days from the date of the letter, or if Plaintiffs appealed, upon issuance of a decision by the Bureau of Hearings and Appeals. (ECF 42 ¶ 27). Since Plaintiffs appealed, they should have been accorded with the opportunity to correct any deficiencies cited by DPW, and upon demonstrating compliance, DPW was required to either renew their Provisional Certificate or issue a Full Certificate. DPW officials continued to make periodic visits to Rascoe Courts during the pendency of the administrative appeal, and Plaintiffs’ continued to submit plans of correction. Nevertheless, and without comment, Defendants failed to issue a Full Certificate or renew Plaintiffs Provisional Certificate. DPW’s decision to revoke Plaintiffs Provision Certificate was based on Drees’ April 17, 2013 declaration that Rascoe Courts was unfit for habitation due to the condition of its fire alarm system. But 55 Pa. Code §2260.266(a) states that a personal care home will have twenty-four (24) hours to correct “Class I” violations Case 1:15-cv-00994-CCC-JFS Document 52-1 Filed 04/07/17 Page 21 of 29 22 and fifteen (15) days to correct “Class II” violations before having its license revoked. While Rascoe still had time to remedy the problem with the alarm, and informed Drees that they were in the process of doing so, Drees closed the building and ordered its residents removed immediately upon leaving. In fact, Drees repeatedly refused to consider any information indicating that Rascoe had fixed the alarm issue in a timely manner. (ECF 42 ¶ 23). Drees’ action is in direct violation of 62 P.S. §1026(a), which requires Drees to give written notice to a person who is in violation of a regulation so that the offending person can “take action to bring the facility in compliance with this act or with the relevant regulations within the specified time.” 62 P.S. §1026(a). Drees’ action similarly ignores the DHS’ Regulatory Compliance Guide which requires that when a violation report is transmitted to a personal care home, that the personal care home must be informed by a letter accompanying the report to submit evidence of compliance with a plan of correction. Thereafter, Drees fabricated allegations against Plaintiffs as Plaintiffs sought administrative redress - without the benefit of a lawyer and a meaningful opportunity to present evidence. These actions, individually and in concert, deprived Plaintiffs of the procedures that would have protected them from a government deprivation of a protected property interest. Accordingly, Plaintiffs established a plausible procedural due process claim against Defendants. Case 1:15-cv-00994-CCC-JFS Document 52-1 Filed 04/07/17 Page 22 of 29 23 D. Plaintiffs have plead sufficient facts to establish a substantive due process claim. A non-legislative government deprivation that comports with procedural due process can give rise to a substantive due process claim ‘upon allegations that the government deliberately and arbitrarily abused its power.’ ”Independent Enters. Inc. v. Pittsburgh Water & Sewer Auth., 103 F.3d 1165, 1179 (3d Cir. 1997) (quoting Midnight Sessions, Ltd. v. City of Philadelphia, 945 F.2d 667, 683 (3d Cir. 1991)). Accordingly, a property interest that falls within the ambit of substantive due process may not be taken away by the state for reasons that are “arbitrary, irrational, or tainted by improper motive,” Woodwind Estates, Ltd. v. Gretkowski, 205 F.3d 118, 123 (3d Cir. 2000). Under this standard, Plaintiffs have met their burden in pleading a substantive due process claim against Defendants Drees and Susquehanna Township. Defendant Drees failed to provide Plaintiffs with proper notice of the violations made against them, or the opportunity to present a plan of corrective action, even though the law provided the Plaintiffs forty-eight (48) hours to remedy the supposed violation. (ECF 42 ¶18). During this forty-eight (48) hour window, Defendant Drees repeatedly refused to listen to information that would have made it clear that the Plaintiffs did in fact fix the issue with the smoke alarm strobe. Furthermore, Plaintiffs allege that Defendant Drees fabricated allegations against Plaintiffs during a constitutionally defective hearing that was held on January 8, Case 1:15-cv-00994-CCC-JFS Document 52-1 Filed 04/07/17 Page 23 of 29 24 2014. (ECF 42 ¶ 35). This conduct can only be understood as being so arbitrary and irrational, or tainted by improper motive, that it “shocks the conscious.” E. Plaintiffs’ Monell claims should not be dismissed. Defendants incorrectly assert that when a failure to train, discipline, or supervise claim is made, that §1983 municipal liability will only attach if the Plaintiff can show that a reasonable municipal policy maker had knowledge of a pattern of prior incidents or knowledge of similar violations of constitutional rights and failed to take adequate measures to ensure the particular right in question. Constitutional deprivations suffered as a result of a municipal entity’s failure to adequately train employees are cognizable under §1983 if the “failure to train reflects deliberate indifference to the constitutional rights of [the municipal entity’s] inhabitants.” City of Canton, Ohio v. Harris, 489 U.S. 378, 392 (1989). Accordingly, even if a municipal entity does not espouse an explicit policy approving of unconstitutional actions, “deliberate indifference” is demonstrated when he inadequacy of training is likely to result in the violation of constitutional rights. Accordingly, even if Defendant Susquehanna Township did not have an explicit policy that its employees deliberately disregard proper inspection and revocation procedures, Defendant Susquehanna’s deliberate indifference is established with evidence that an employee failed to receive the proper training. Defendant Drees failed to follow the proper inspection and revocation procedures. Case 1:15-cv-00994-CCC-JFS Document 52-1 Filed 04/07/17 Page 24 of 29 25 His failure to follow the proper procedures caused harm to the Plaintiffs, and demonstrates Defendant Susquehanna’s deliberate indifference to the harm that was caused. Defendants further argue that the Monell claims asserted by Plaintiffs alleging that Defendant Susquehanna Township had a custom of disregarding civil and constitutional rights, should be dismissed. In Monell v. Dept. of Soc. Servs., 436 U.S. 658, 690-91 (1978), the Court stated that a municipal entity can be held liable for constitutional deprivations inflicted as a result of its policies or customs. Moreover, a municipal entity can be held liable for “constitutional deprivations pursuant to governmental ‘custom’ even though such a custom has not received formal approval through the body’s official decision-making channels.” Id. at 691. While Defendants characterize Plaintiffs’ claims as mere “boilerplate”, Plaintiffs Third Amended Complaint explains how Defendant Drees repeated course of conduct constituted a violation of their procedural due process rights. Despite the insinuation of Defendants’ Motion to Dismiss, Defendant Drees’ conduct on April 17, 2013 was not a single isolated incident. Rather, it was merely a single aspect of a sustained campaign against Plaintiffs to deny them the full use and enjoyment of their property by disregarding their constitutional rights. The prevalence of the conduct indicates that the Susquehanna Township has a custom of disregarding constitutional violations undertaken by their employees, and this Case 1:15-cv-00994-CCC-JFS Document 52-1 Filed 04/07/17 Page 25 of 29 26 custom proximately and actually led to the violations of Plaintiffs’ substantive and procedural due process rights. Thus, Plaintiffs’ failure to train claims under City of Canton, along with their Monell claims, should not be dismissed. F. Defendants improperly raised qualified immunity in a Rule 12(b)(6) Motion to Dismiss. The burden of pleading qualified immunity rests with the defendant and not on the plaintiff. Thomas v. Independence Tp., 463 F.3d 285, 293 (3d. Cir. 2006). Even in applying the Iqbal standard, the Third Circuit has warned “it is generally unwise to venture into a qualified immunity analysis at the pleading stage as it is necessary to develop a factual record in the vast majority of cases.” Newland v. Reehorst, 328 Fed.Appx. 781, 791 n.3 (3d Cir. 2009). Accordingly, Plaintiffs have no obligation to plead a violation of clearly established law in order to avoid dismissal on qualified immunity grounds. VI. CONCLUSION For all the reasons discussed above, the facts alleged in Plaintiffs’ Third Amended Complaint clearly substantiate that Plaintiffs established, at the very least, a plausible claim for relief. Therefore, this Court should deny Defendants’ Motion to Dismiss Plaintiffs’ Third Amended Complaint. Respectfully submitted, BY: _/s/ Faye Riva Cohen__________________ LAW OFFICE OF FAYE RIVA COHEN, P. C. FAYE RIVA COHEN, ESQUIRE Case 1:15-cv-00994-CCC-JFS Document 52-1 Filed 04/07/17 Page 26 of 29 27 Attorney ID: 18839 2047 Locust Street Philadelphia, PA 19103 (215) 563-7776 Attorney for Plaintiff Date: April 7, 2017 Case 1:15-cv-00994-CCC-JFS Document 52-1 Filed 04/07/17 Page 27 of 29 28 CERTIFICATE OF WORD COUNT COMPLIANCE I hereby certify that this Brief in Opposition of Motion to Dismiss complies with the word limitation of 5,000 words. Excluding the cover page, tables, and certifications, but including its footnotes, this brief contains 4,976 words as calculated by Microsoft Word. Faye Riva Cohen, Esquire Faye Riva Cohen, Esquire Case 1:15-cv-00994-CCC-JFS Document 52-1 Filed 04/07/17 Page 28 of 29 29 CERTIFICATE OF SERVICE I hereby certify that on the date listed below, I caused to be served a true and correct copy of Plaintiffs’ Motion in Opposition to Defendants Susquehanna Township and George Drees’ Motion to Dismiss Plaintiffs’ Third Amended Complaint and its accompanying Brief via the CM/ECF system to the following: Donald L. Carmelite, Esquire Sharon Rogers, Esquire Marshall, Dennehey, Warner, Deputy Attorney General Coleman & Goggin Office of the Attorney General 100 Corporate Center Drive Civil Litigation Section Suite 201 15th Floor, Strawberry Square Camp Hill, PA 17011 Harrisburg, PA 17120 Counsel for Defendants Counsel for Neil Cody Susquehanna Township and George Drees LAW OFFICE OF FAYE RIVA COHEN, P.C. __/s/ Faye Riva Cohen________ Faye Riva Cohen, Esq. Date: April 7, 2017 Case 1:15-cv-00994-CCC-JFS Document 52-1 Filed 04/07/17 Page 29 of 29 IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA ______________________________________________________________________________ MICHELLE RASCOE and RASCOE : COURTS, INC., : CIVIL ACTION Plaintiffs, : No.: 1:15-cv-00994-CCC-JFS : v. : : SUSQUEHANNA TOWNSHIP, : JURY TRIAL DEMANDED NEIL CODY, in his individual : capacity only and GEORGE DREES, : in his individual and official capacity, : : Defendants. : ______________________________________________________________________________ ORDER AND NOW, th0is day of , 2017, after consideration of Defendants Susquehanna Township’s and George Drees’ Motion to Dismiss Plaintiffs’ Complaint Pursuant to Fed. R. Civ. P. 12(b)(6) and Plaintiffs’ response thereto, it is hereby ORDERED and DECREED that Defendants’ Motion is DENIED, and that Defendants shall file and serve their answer to Plaintiffs’ Complaint within ________ days of the date of this Order. BY: _____________________________________ J. Case 1:15-cv-00994-CCC-JFS Document 52-2 Filed 04/07/17 Page 1 of 1