Opinion
CIVIL ACTION No. 19-cv-2599
08-28-2020
Karimu HAMILTON, Plaintiff, v. RADNOR TOWNSHIP, et al., Defendants.
J. Michael Considine, Jr., J. Michael Considine Jr PC, Philadelphia, PA, for Plaintiff. Karimu Hamilton, Bryn Mawr, PA, Pro Se. Robert P. Didomenicis, Holsten & Associates, Media, PA, for Defendants Christopher B. Flanagan, Andrew Pancoast, Kevin Kochanski, Shawn Patterson, Stephanie Racht, Patrick Lacey, Sgt. Christopher Gluck, Brett Geaves. Anthony S. Pinnie, Kenneth R. Schuster and Associates, Media, PA, for Defendants Rachel Ridgeway, Justin Ridgeway. Robert James Cosgrove, Wade Clark Mulcahy, Philadelphia, PA, for Defendant Bryn Mawr Fire Company.
J. Michael Considine, Jr., J. Michael Considine Jr PC, Philadelphia, PA, for Plaintiff.
Karimu Hamilton, Bryn Mawr, PA, Pro Se.
Robert P. Didomenicis, Holsten & Associates, Media, PA, for Defendants Christopher B. Flanagan, Andrew Pancoast, Kevin Kochanski, Shawn Patterson, Stephanie Racht, Patrick Lacey, Sgt. Christopher Gluck, Brett Geaves.
Anthony S. Pinnie, Kenneth R. Schuster and Associates, Media, PA, for Defendants Rachel Ridgeway, Justin Ridgeway.
Robert James Cosgrove, Wade Clark Mulcahy, Philadelphia, PA, for Defendant Bryn Mawr Fire Company.
ORDER
MITCHELL S. GOLDBERG, J. AND NOW , this 28th day of August, 2020, upon consideration of the Radnor Defendants' "Motion for Partial Dismissal of Plaintiff's Second Amended Complaint and for a More Definite Statement" (ECF No. 51) and Plaintiff's response in opposition (ECF No. 54), I find as follows:
I. FACTUAL AND PROCEDURAL BACKGROUND
1. On June 14, 2019, Plaintiff Karimu Hamilton, initially acting pro se, filed this action pursuant to 42 U.S.C. § 1983 based on allegations pertaining to Radnor Township condemning her home. She also filed a Motion for Leave to Proceed In Forma Pauperis. Before I ruled on that motion, Plaintiff filed an Amended Complaint (ECF No. 5), which identified new defendants but did not contain any factual allegations. On June 25, 2019, I granted Plaintiff's Motion for Leave to Proceed In Forma Pauperis but dismissed her Amended Complaint with leave to amend. (ECF Nos. 7, 8.)
2. Plaintiff's counsel then entered an appearance and filed the Second Amended Complaint on August 9, 2019 against the following two groups of defendants: (1) Justin and Rachel Ridgeway (the "Ridgeway Defendants"), and (2) the "Radnor Defendants," which collectively refers to Radnor Township Police Superintendent Christopher B. Flanagan and Radnor Township Police Officer Shawn Patterson, Officer Stephanie Racht, Officer Patrick Lacy, Sergeant Christopher Gluck, Officer Brett Greaves, and Andrew Pancoast and Kevin Kochanski, who are employees of the Department of Community Development. (ECF No. 13.) The crux of Plaintiff's Second Amended Complaint appears to be the search and condemnation of her home by Radnor Township officials and related proceedings initiated against her in state court stemming from plumbing and other issues at her property. Plaintiff claims that her rights to due process were violated, that she was subjected to unlawful searches and an unlawful arrest, and that the Radnor Defendants and Ridgeway Defendants discriminated against her.
3. The following facts, viewed in the light most favorable to Plaintiff, are derived from the Second Amended Complaint:
• Plaintiff, owner of 30 Garrett Avenue in Bryn Mawr, Pennsylvania, and the Ridgeway Defendants, owners of 32 Garrett Avenue in Bryn Mawr, Pennsylvania, are adjoined neighbors in a twin house.
In deciding a motion under Federal Rule of Civil Procedure 12(b)(6), the court must accept all factual allegations in the complaint as true, construe the complaint in the light most favorable to the plaintiff, and determine whether, under any reasonable reading, the plaintiff may be entitled to relief. Atiyeh v. Nat'l Fire Ins. Co. of Hartford, 742 F. Supp. 2d 591, 596 (E.D. Pa. 2010).
On December 3, 2018, the Ridgeway Defendants contacted Defendant Flanagan and reported that they smelled gas emanating from Plaintiff's home. As a result, Defendant Patterson visited Plaintiff and conducted a warrantless search of her home without Plaintiff's consent. Plaintiff claims that Officer Patterson stayed for a significant period of time beyond what was needed to determine if there was dangerous gas in the home. Plaintiff claims that there was no emergency present, no significant risk of serious physical injury to an occupant, and no significant smell of gas present at the time. Without specific details as to when or how, Plaintiff claims that PECO had not found any danger in the home. (Sec. Am. Compl. ¶¶ 15, 32.)
• On December 4, 2018, Plaintiff was contacted by Children and Youth Services, who indicated that a mandatory reporter claimed that her home was unfit for habitation by Plaintiff's six-year-old daughter. Thereafter, Defendants Flanagan, Kochanski, Pancoast, Racht and a Child and Youth Services caseworker arrived at Plaintiff's house without a warrant. Plaintiff alleges that, initially, she permitted the caseworker, but not the police officers, to enter her home. However, upon insistence by the caseworker that a police officer had to accompany her inside the home, both the caseworker and Officer Racht entered and searched Plaintiff's home. The caseworker stated that the water was off, which Plaintiff claims was untrue. Plaintiff contends that she never gave permission for a search of the premises. (Id. ¶ 17.)
• Around January 2019, Plaintiff received various letters and notices of housing code violations, which identified concerns about plumbing and flagged concern about whether the house was fit for habitation by her minor daughter. However, Plaintiff alleges that neither the January 2019 letter nor any other correspondence put her on notice that she was at risk of eviction for failure to make certain home repairs. (Id. ¶¶ 19, 22, 41.)
• On June 8, 2019, the Ridgeway Defendants again called Defendants Flanagan, Pancoast, and Kochanski about smelling gas emanating from Plaintiff's residence. Though, Plaintiff alleges that there was "no gas smell on [Plaintiff's] premises" and claims that the Ridgeway Defendants reported such smell to "intimidate Plaintiff" in an effort to evict her. (Id. ¶ 23.)
• On June 11, 2019, the Ridgeway Defendants again contacted the Radnor Defendants and complained that Plaintiff was walking up the street with a knife. Plaintiff alleges that the Ridgeway Defendants knew that Plaintiff was actually holding a hand saw used for gardening but called the Radnor Defendants to "deliberately create[ ] a false impression of an emergency situation in an effort to bring about the arrest of the Plaintiff without probable cause" in a "continuing conspiracy with police." (Id. ¶ 24.) According to Plaintiff, the Radnor Defendants arrived on scene, pointed loaded guns at her, and detained her on the street corner for twenty to thirty minutes while they investigated the Ridgeway Defendants' complaint. (Id. ¶¶ 24, 25.)
• The Ridgeway Defendants contacted the Radnor Defendants at least three or four times by phone or in person "in an effort to get Plaintiff to move off the premises." (Id. ¶ 24.)
• Plaintiff alleges that she was evicted from her home on June 14, 2019. That morning, Defendants Flanagan, Kochanski, and Pancoast ordered Plaintiff and her daughter to leave the premises and padlocked the doors. Plaintiff alleges that upon eviction, there were no conditions making the premises unreasonably unsafe for habitation. (Id. ¶¶ 36–37.)
• Plaintiff contends that her white neighbors, the Ridgeway Defendants, had "effluent in or coming from their house because there was a strong smell of it." (Id. ¶ 55.) While Plaintiff was evicted for similar housing ordinance violations, the Ridgeway Defendants were not evicted for the effluent leaking out of their house. (Id. )
• Plaintiff also alleges that a grapevine straddled the property line between her home and that of the Ridgeway Defendants. At some unspecified time, Plaintiff alleges that "Defendant Flanagan told Plaintiff [that] Defendants Ridgeway said the grapevine was on the Ridgeway's property and that if Plaintiff touched it[,] [Defendant Flanagan] would cite [Plaintiff] for criminal trespassing." (Id. ¶ 33.) Plaintiff claims that the Ridgeway Defendants cut down the grapevine without Plaintiff's permission. When Plaintiff reported this to Defendant Flanagan, he told Plaintiff to file a police report. Plaintiff filed a police report but alleges that the Radnor Defendants have taken no action, never cited the Ridgeway Defendants for damaging Plaintiff's property. (Id. ¶¶ 32–35, 43.)
• Without specifying when or how she conveyed such messages, Plaintiff alleges that she repeatedly complained to the Radnor Defendants that she has been the victim of police overreach based on officers' filing of charges without probable cause. She claims that she was treated differently because of her race. Plaintiff further cites to an incident in April 2010 during which the Radnor Township Police Department towed a car from Plaintiff's driveway. Thereafter, Plaintiff complained to the Radnor Township Police that they had no right to tow the car. At some unspecified time thereafter, Plaintiff claims that in retaliation, she was charged with criminal trespassing. (Id. ¶ 28–30, 43.)
4. As referenced in Plaintiff's Second Amended Complaint and her accompanying exhibits, on April 25, 2019, Radnor Township filed a complaint in the Delaware County Court of Common Pleas against Plaintiff seeking injunctive relief for various housing code violations alleged to exist at Plaintiff's property. See Radnor Township v. Hamilton, Docket No. CV-2019-003622 (Delaware Cty. Ct. of Common Pleas). None of the individually-named Defendants from the present federal case are named in the state court litigation. On July 11, 2019, the state court judge entered an order requiring Plaintiff to correct particular code violations in her home and directing that Plaintiff was not permitted to stay
overnight on the property until such violations were corrected.
5. In the present federal litigation, Plaintiff's Second Amended Complaint alleges the following claims against the Radnor Defendants: (1) a violation of the Fourth Amendment for illegal searches, (2) retaliation for complaining of police misconduct, (3) equal protection violation for selective treatment, (4) eviction without due process, in violation of the Fourteenth Amendment, (5) false arrest, and (6) use of excessive force.
6. The Radnor Defendants move to dismiss counts one through four.
II. STANDARD OF REVIEW
7. To survive a motion to dismiss pursuant to Rule 12(b)(6), a complaint must "contain sufficient factual matter, accepted as true, to ‘state a claim for relief that is plausible on its face.’ " Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) ). Plausibility requires "enough facts to raise a reasonable expectation that discovery will reveal evidence of the necessary elements of a claim." Phillips v. Cnty. Of Allegheny, 515 F.3d 224, 234 (3d Cir. 2008).
8. To determine the sufficiency of a complaint under Twombly and Iqbal, a court must (1) "tak[e] note of the elements a plaintiff must plead to state a claim;" (2) identify the allegations that are not entitled to the assumption of truth because they are no more than conclusions; and (3) "where there are well-pleaded factual allegations, assume their veracity and then determine whether they plausibly give rise to an entitlement for relief." Burtch v. Milberg Factors, Inc., 662 F.3d 212, 221 (3d Cir. 2011) (citations omitted).
III. DISCUSSION
9. The Radnor Defendants request that counts one through four be dismissed and that Defendants Patterson, Racht, Flanagan, Kochanski, and Pancoast are entitled to qualified immunity.
A. Count One – Violation of the Fourth Amendment for Illegal Searches
10. The Radnor Defendants first argue that count one for illegal searches under the Fourth Amendment should be dismissed for failure to state a claim. With regard to the December 3, 2018 search, the Radnor Defendants claim that exigent circumstances—the neighbor's report of smelling gas emanating from Plaintiff's home—justified the warrantless search.
11. As for the December 4, 2018 warrantless search, the Radnor Defendants argue that exigent circumstances existed or, alternatively, that they received Plaintiff's consent to search her home. They claim that the Second Amended Complaint specifically alleges that a mandatory reporter informed Children and Youth Services that Plaintiff's house was unfit for habitation by Plaintiff's six-year-old daughter. According to the Radnor Defendants, the report to Children and Youth Services provided sufficient exigent support to search the house to ensure the minor child's safety. Alternatively, the Radnor
Defendants claims that Plaintiff's actions on December 4, 2019, while begrudging, constituted consent for Defendant Racht to enter.
12. In response, Plaintiff argues that the December 3 and 4, 2018 warrantless searches were not supported by exigent circumstances because there was no emergency, no significant risk of serious physical injury to an occupant, and no significant smell of gas present at the time. Without specific details as to when or how, Plaintiff claims that PECO found no danger in the home. Plaintiff claims that Officer Patterson searched her home for a significant period of time beyond what was needed to determine if there was dangerous gas present. She also argues that she did not consent to the searches.
13. The Fourth Amendment to the United States Constitution guarantees "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures" by governmental actors. U.S. Const. amend. IV. A warrantless home entry and search "is presumptively unconstitutional, but exigent circumstances can excuse the warrant requirement." Kubicki v. Whitemarsh Twp., 270 Fed. App'x 127, 128 (3d Cir. 2008) (citations omitted). "Examples of exigent circumstances include, but are not limited to, hot pursuit of a suspected felon, the possibility that evidence may be removed or destroyed, and danger to the lives of officers or others." United States v. Coles, 437 F.3d 361, 366 (3d Cir. 2006). "[T]he state actors making the search must have reason to believe that life or limb is in immediate jeopardy and that the intrusion is reasonably necessary to alleviate the threat." Good v. Dauphin Cty. Soc. Servs. for Children & Youth, 891 F.2d 1087, 1094 (3d Cir. 1989). The court must decide "whether the officer's determination was objectively reasonable at the time in question, based on the reasonably discoverable information available to the officer at the time." United States v. Sculco, 82 F.Supp.2d 410, 417 (E.D. Pa. 2000).
14. Whether exigent circumstances were present is a question of fact. Id. "Therefore, these fact-specific claims typically are not amenable to resolution on the pleadings alone, unless those pleadings affirmatively demonstrate the existence of an exception to the Fourth Amendment's warrant requirement." Tucker v. Petruzzi, No. 17-1848, 2018 WL 3623766, at *5 (M.D. Pa. June 27, 2018), report and recommendation adopted, No. 17-1848, 2018 WL 3622772 (M.D. Pa. July 30, 2018). "[T]he very nature of Fourth Amendment ... unlawful entry litigation entails a consideration of the requirements of the Constitution in a specific factual context.... As such, these claims frequently are not subject to resolution on a motion to dismiss, where our review is confined to an assessment of the well-pleaded facts in the complaint." Id.
15. As an initial matter, I find no allegations in the Second Amended Complaint to suggest that Plaintiff consented to Defendant Racht's entry and search of her home on December 4, 2018. As for the Radnor Defendants' argument that probable cause and exigent circumstances
justified the warrantless searches, an appropriate analysis of this contention turns on a series of fact intensive evaluations, including a review of the totality of the circumstances leading to and during both entries and searches of Plaintiff's home. As such review necessitates considerations beyond the pleadings, disposition of the Fourth Amendment claim is better suited following discovery and on a motion for summary judgment. Therefore, I will deny the Radnor Defendants' motion to dismiss the Fourth Amendment claim.
B. Count Two – Retaliation for Complaining of Police Misconduct
16. The Radnor Defendants next argue that count two should be dismissed for failure to state a claim, or, alternatively, should be amended to provide a more definite statement. They contend that count two is an unclear compilation of all other counts in the Second Amended Complaint.
17. In response, Plaintiff argues that she "alleged Defendants Paterson and Racht, did what they did, in retaliation for her complaints about their behavior ... It is clear what it is alleged in Count II is what each Defendant did and that it was done in part due to the verbal complaints by Plaintiff about their behavior ... Defense counsel tries to create an ambiguity. None exists." (Pl.'s Br. at 19, ECF No. 51.)
18. Here, the Second Amended Complaint, taken in the light most favorable to Plaintiff in count two, alleges that Defendants Flanagan, Kochanski, Pancoast, and Racht retaliated against Plaintiff based on her speech in violation of the First Amendment.
19. "In order to plead a retaliation claim under the First Amendment, a plaintiff must allege: (1) constitutionally protected conduct, (2) retaliatory action sufficient to deter a person of ordinary firmness from exercising [her] constitutional rights, and (3) a causal link between the constitutionally protected conduct and the retaliatory action." Thomas v. Indep. Twp., 463 F.3d 285, 296 (3d Cir. 2006). "To establish the requisite causal connection, a plaintiff usually must prove either (1) an unusually suggestive temporal proximity between the protected activity and the allegedly retaliatory action, or (2) a pattern of antagonism coupled with timing to establish a causal link." Lauren W. ex rel. Jean W. v. DeFlaminis, 480 F.3d 259, 267 (3d Cir. 2007). A plaintiff must first show that the defendant had knowledge of the protected activity to show that such activity was "a substantial or motivating factor" in its disciplinary action. Ambrose v. Twp. of Robinson, 303 F.3d 488, 493–94 (3d Cir. 2002).
Pursuant to Rule 12(e) of the Federal Rules of Civil Procedure, "[a] party may move for a more definite statement of a pleading to which a responsive pleading is allowed but which is so vague or ambiguous that the party cannot reasonably prepare a response." Because my ruling pursuant to Rule 12(b)(6) is dispositive, I do not reach a Rule 12(e) analysis.
20. Here, Plaintiff alleges that she had a history of complaining to the Radnor Defendants based on police overreach and filing of charges without probable cause. Even assuming that Plaintiff pled the first two prongs, she has not sufficiently pled a causal link between the constitutionally protected conduct and the purported retaliatory action. The only potential allegation of retaliation involves an April 2010 incident during which "Radnor Township Police Officers" towed her car. In response to Plaintiff's complaints, the Radnor Township police, at some unspecified time thereafter, responded by citing her for criminal trespass. Beyond any potential statute of limitations concern, Plaintiff has not indicated whether the officers named in this complaint were involved in the 2010 incident and provides no information as to when she lodged her complaints to the Radnor Defendants or how those complaints are causally linked or temporally related to any resultant conduct by the Radnor Defendants. Accordingly, Plaintiff's Second Amended Complaint fails to adequately plead a causal link between her allegedly protected activities and the Radnor Defendants' supposed retaliatory conduct. Therefore, I will grant the Radnor Defendants' motion to dismiss the retaliation claim.
21. In civil rights cases, "district courts must offer amendment—irrespective of whether it is requested—when dismissing a case for failure to state a claim unless doing so would be inequitable or futile." Fletcher-Harlee Corp. v. Pote Concrete Contractors, Inc., 482 F.3d 247, 251 (3d Cir. 2007). Here, Plaintiff's initial Complaint and First Amended Complaint were filed while she was acting pro se. Her Second Amended Complaint was her first pleading filed by counsel. Therefore, I will afford Plaintiff an opportunity to amend her retaliation claim against the Radnor Defendants, if she is able to do so in accordance with this Order.
C. Count Three – Equal Protection Violation for Selective Treatment
22. The Radnor Defendants next argue that the equal protection count fails to allege sufficient facts to establish that the Radnor Defendants selectively enforced housing codes against Plaintiff based on her race. Plaintiff responds that she sufficiently pled that the Radnor Defendants "strategically and purposefully" discriminated against her because she is African American. She posits that similarly situated non-African American homeowners were treated differently than her because, despite others having committed similar infractions, they did not receive housing ordinance violations or threats from law enforcement of receiving such violations (i.e., the grapevine incident). Plaintiff contends that while her white neighbors, the Ridgeway Defendants, had "effluent in or coming from their house because there was a strong smell of it," Plaintiff was evicted for housing ordinance violations but the Ridgeway Defendants were not. (Sec. Am. Compl. ¶ 55.)
23. The Fourteenth Amendment states that "[n]o State shall ... deny to any person
within its jurisdiction the equal protection of the laws." U.S. Const. amend. XIV, § 1. To establish a claim of selective enforcement under the Equal Protection Clause, a plaintiff must show that "(1) the plaintiff, compared with others similarly situated, was selectively treated; and (2) the selective treatment was motivated by an intent to discriminate on the basis of impermissible considerations, such as race or religion, to punish or inhibit the exercise of constitutional rights, or by a malicious or bad faith intent to injure a person." Prof. Dog Breeders Advisory Council, Inc. v. Wolff, 752 F. Supp. 2d 575, 595 (E.D. Pa. 2010) (citations omitted). "To avoid dismissal, a plaintiff must allege both protected-class status and differential treatment of similarly situated non-class members." Suber v. Guinta, 902 F. Supp. 2d 591, 606 (E.D. Pa. 2012). "Persons are similarly situated under the Equal Protection Clause when they are alike in all relevant aspects." Startzell v. City of Phila., 533 F.3d 183, 203 (3d Cir. 2008) (citations omitted).
24. Here, Plaintiff is an African-American citizen, and, as such, is a member of a constitutionally protected class. See Wilcher v. Postmaster General, 441 Fed. App'x 879, 881 (3d Cir. 2011). Plaintiff's alleges that she—but not her similarly situated white neighbors who conducted similar housing code violations—was evicted, subjected to threats of receiving additional Radnor Township housing ordinances, harassment, and other abuses, because of her association within the protected racial class. At this early stage of the litigation, and accepting Plaintiff's facts as true, her allegations sufficiently plead an equal protection claim. Accordingly, I will deny the Radnor Defendants' motion to dismiss the equal protection claim.
To the extent that the Radnor Defendants argue that Plaintiff's claims for due process and equal protection violations should be barred by the abstention doctrine pursuant to Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971), I disagree. Pursuant to this doctrine, federal courts should not exercise jurisdiction over a matter when: "(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 the federal claims." Lazaridis v. Wehmer, 591 F.3d 666, 671 (3d Cir. 2010) (citations omitted). Abstention remains "the exception, not the rule and is an extraordinary and narrow exception to the duty of a District Court to adjudicate a controversy properly before it." Gwynedd Props., Inc. v. Lower Gwynedd Twp., 970 F.2d 1195, 1199 (3d Cir. 1992) (citations omitted). "[W]here federal proceedings parallel but do not interfere with the state proceedings, the principles of comity underlying Younger abstention are not implicated [and] [t]hus, Younger abstention may not be appropriate where, for example, the federal plaintiff seeks only prospective relief without seeking to annul either previous state court judgments or the effect of the judgments." Id. at 1201. Here, Plaintiff is not seeking to enjoin the state proceedings nor is she challenging the validity of a township or municipal ordinance. Rather, Plaintiff is challenging the purportedly unlawful conduct of the individual defendants, who were not parties to the state court litigation. Therefore, Plaintiff's federal causes of action do not raise concern for the state-federal comity addressed by the Younger abstention.
D. Count Four – Eviction Without Due Process in Violation of the Fourteenth Amendment
25. The Radnor Defendants next seek dismissal of the due process count, arguing that Plaintiff was given notice of her housing code violations as early as January 2019, prior to her June 2019 eviction. Alternatively, the Radnor Defendants argue that Plaintiff was given notice and opportunity to be heard after she was evicted during the Delaware County Court of Common Pleas action (Docket No. CV-2019-0003622). The Radnor Defendants insist that the post-eviction notice and hearing were justified based on the exigent circumstances and need for government officials to address the continuing complaints of gas odors and sewage issues at Plaintiff's house.
26. In response, Plaintiff clarifies that she is only raising a claim for a procedural—and not a substantive—due process violation. (Pl.'s Br. at 2, ECF No. 54.) In support of her procedural due process claim, she argues that she was not given proper notice or an opportunity for a hearing prior to her eviction. She contends that the various housing code violation letters and court notices were insufficient.
27. The Fourteenth Amendment creates a "guarantee of fair procedure" whereby an individual can assert that she was deprived of a life, liberty, or property interest without due process of law. Zinermon v. Burch, 494 U.S. 113, 125, 110 S.Ct. 975, 108 L.Ed.2d 100 (1990). The core of a procedural due process claim is "notice and an opportunity to be heard." Kadakia v. Rutgers, 633 Fed. App'x 83, 88 (3d Cir. 2015). "When assessing the viability of such claims, [courts] employ the familiar two-stage analysis, inquiring (1) whether the asserted individual interests are encompassed within the fourteenth amendment's protection of life, liberty, or property; and (2) whether the procedures available provided the plaintiff with due process of law." Washington v. Boder, 762 Fed. App'x 133, 136 (3d Cir. 2019), cert. denied, ––– U.S. ––––, 140 S. Ct. 1159, 206 L.Ed.2d 208 (2020) (citations omitted). "[A] state provides constitutionally adequate procedural due process when it provides reasonable remedies to rectify a legal error by a local administrative body." Vurimindi v. City of Phila., 521 Fed. App'x 62, 65 (3d Cir. 2013) (citations omitted).
28. With respect to the procedures afforded, "[a] fundamental requirement of due process is the opportunity to be heard ... at a meaningful time and in a meaningful manner." Armstrong v. Manzo, 380 U.S. 545, 552, 85 S.Ct. 1187, 14 L.Ed.2d 62 (1965). "It has long been settled law that where a state can feasibly provide a pre-deprivation hearing before taking property, it generally must do so." Garanin v. City of Scranton, No. 19-1275, 2019 WL 6875541, at *7 (M.D. Pa. Dec. 17, 2019) (citing Fuentes v. Shevin, 407 U.S. 67, 80–84, 92 S.Ct. 1983, 32 L.Ed.2d 556 (1972) ). In situations "where a state must act quickly [to address
exigent circumstances] or where it would be impractical to provide pre-deprivation process, [the Supreme Court has held that providing] post-deprivation satisfies the requirements of the Due Process Clause." Nat'l Amusements Inc. v. Borough of Palmyra, 716 F.3d 57, 62 (3d Cir. 2013) (citing Gilbert v. Homar, 520 U.S. 924, 930, 117 S.Ct. 1807, 138 L.Ed.2d 120 (1997) ). Thus, "[w]here competent evidence allows an official to reasonably believe that an emergency exists, discretionary invocation of emergency procedures will only amount to a constitutional violation if the action is arbitrary or an abuse of discretion." Elsmere Park Club, L.P. v. Town of Elsmere, 542 F.3d 412, 418 (3d Cir. 2008). "Where government officials are faced with a decision in which a failure to act quickly could have serious health consequences, perfection or near perfection is not the standard." Id. at 420.
29. Here, there is no dispute that Plaintiff's ownership of her house at 30 Garrett Avenue is a property interest protected by the Fourteenth Amendment. The central question, therefore, is whether Plaintiff has adequately pled that her procedural due process rights in that property were violated. In this case, factual dispute exists as to whether competent evidence allowed the Radnor Defendants to reasonably believe that an actual emergency existed to obviate the pre-eviction notice and hearing process. At this early pleading stage, and upon consideration of the allegations in the Second Amended Complaint, Plaintiff has stated a claim for a procedural due process violation. Therefore, I will deny the Radnor Defendants' motion to dismiss the procedural due process claim.
E. Qualified Immunity
30. Finally, the Radnor Defendants urge that Defendants Patterson, Racht, Flanagan, Kochanski, and Pancoast are entitled to qualified immunity on counts one through four. In support, the Radnor Defendants claim that each individual defendant's actions did not unreasonably violate Plaintiff's clearly established constitutional rights. Alternatively, the Radnor Defendants argue that Plaintiff's Second Amended Complaint lacks facts to support claims against each individually-named defendant. In opposition, Plaintiff urges that qualified immunity turns on questions of fact more appropriately developed through discovery.
31. State officials performing discretionary acts enjoy "qualified immunity" from civil damages in § 1983 causes of action when their conduct does not violate "clearly established" statutory or constitutional rights of which a "reasonable person" would have been aware at the time the incident occurred. Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982). "Qualified immunity balances two important interests—the need to hold public officials accountable when they exercise power irresponsibly and the need to shield officials from harassment, distraction, and liability when they perform their duties reasonably."
Pearson v. Callahan, 555 U.S. 223, 231, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009) ; Kelly v. Borough of Carlisle, 544 Fed. App'x 129, 133–34 (3d Cir. 2013).
32. "Qualified immunity is immunity from suit, and should be resolved as early as possible." Docherty v. Cape May County, No. 15-8785, 2017 WL 2819963, at *6 (D.N.J. June 29, 2017). The United States Court of Appeals for the Third Circuit has stated that, at the pleading stage, "qualified immunity will be upheld on a 12(b)(6) motion only when the immunity is established on the face of the complaint." Thomas v. Indep. Twp., 463 F.3d 285, 291 (3d Cir. 2006) (citation omitted). "The burden of establishing qualified immunity falls to the official claiming it as a defense." Burns v. PA Dept. of Corr., 642 F.3d 163, 176 (3d Cir. 2011).
33. Here, Plaintiff has sufficiently alleged an unreasonable violation of her clearly established constitutional rights. She has alleged some involvement by each of the individually named defendants in support of each claim. Based on the face of the Second Amended Complaint, each individually-named defendant's entitlement to qualified immunity is not clear. Accordingly, the Radnor Defendants' qualified immunity defense will be denied without prejudice.
The Radnor Defendants may re-raise the defense of qualified immunity at the summary judgment stage if discovery reveals admissible evidence that they believe supports this defense.
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WHEREFORE , it is hereby ORDERED that the Radnor Defendants' "Motion to Dismiss Plaintiff's Second Amended Complaint" (ECF No. 44) is GRANTED in part and DENIED in part as follows:
– The Radnor Defendants' motion is GRANTED as to count two, such that count two is DISMISSED without prejudice.
– The Radnor Defendants' motion is DENIED with respect to all other counts.
– On or before September 27, 2020, Plaintiff may file a Third Amended Complaint with regard to count two against the Ridgeway Defendants, if possible to do so in accordance with this Order.
– On or before October 1, 2020, the Radnor Defendants shall answer or otherwise respond.