Opinion
Civil Action 3:23-cv-01930
12-08-2023
MICHAEL TORNILLO, Plaintiff, v. PREFERRED MANAGEMENT ASSOCIATES and THORNHURST COUNTRY CLUB ESTATES, Defendants.
MANNION, J.
REPORT AND RECOMMENDATION
JOSEPH F. SAPORITO, JR. United States Magistrate Judge
The plaintiff, Michael Tornillo, commenced this action by lodging a pro se complaint with the clerk for filing, together with supporting exhibits and a motion for leave to proceed in forma pauperis in this action. (Doc. 1; Doc. 6.) We have entered a separate order granting the plaintiff's motion for leave to proceed in forma pauperis.
The pro se plaintiff is the owner of a residential property located in Thornhurst Country Club Estates, a planned community situated within Thornhurst Township, Lackawanna County, Pennsylvania. Liberally construed, the pro se complaint names two defendants: (1) The Thornhurst Country Club Estates Property Owners' Association (the “POA”);and (2) Preferred Management Associates (the “Community Manager”), which manages the community and serves as an agent of the POA. See generally Mala v Crown Bay Marina, Inc., 704 F.3d 239, 24446 (3d Cir. 2013) (discussing a court's obligation to liberally construe pro se pleadings and other submissions). The complaint asserts a federal civil rights claim for damages and injunctive relief against these defendants under 42 U.S.C. § 1983.
The pro se complaint actually names “Thornhurst Country Club Estates” as a defendant, but the community itself is a location, not an entity that may be sued. Based on the allegations of the complaint and on the exhibits attached thereto, we have liberally construed the complaint instead as naming the POA as a defendant.
The pro se complaint alleges that the plaintiff has published advertisements marketing the residence for short-term rental. The POA rules, attached as an exhibit to the complaint, prohibit community members from renting out their properties within the community for periods of less than 3 months. Apparently, pursuant to its rules, the POA and its Community Manager have levied fines against the plaintiff for violation of these POA rules prohibiting short-term rentals. The POA rules further provide that unpaid fines constitute an automatic lien on the individual property at issue, and that legal action may be taken as well. The plaintiff claims that the POA rule prohibiting short-term rentals and the POA's issuance of fines or liens against the property infringe upon his First Amendment right to free speech (i.e., to advertise his property as a short-term rental).
A plaintiff proceeding in forma pauperis is subject to 28 U.S.C. § 1915(e)(2), which provides that a court “shall dismiss the case at any time if the court determines that . . . the action . . . fails to state a claim upon which relief may be granted.” 28 U.S.C. § 1915(e)(2)(B)(ii). In performing this screening function, a district court applies the same standard applied to motions to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure. See Bush v. Doe, 858 Fed. App'x 520, 522 n.4 (3d Cir. 2021) (“The standard for dismissal under § 1915(e)(2)(B)(ii) is the same as under Fed.R.Civ.P. 12(b)(6).”) (citing Tourscher v. McCullough, 184 F.3d 236, 240 (3d Cir. 1999)); see also Snider v. Pa. DOC, 505 F.Supp.3d 360, 396 (M.D. Pa. 2020) (“When considering whether [a plaintiff] fails to state a claim under Section 1915(e)(2)([B])(ii), we apply the Rule 12(b)(6) standard.”). “Under Rule 12(b)(6), a motion to dismiss may be granted only if, accepting all well-pleaded allegations in the complaint as true and viewing them in the light most favorable to the plaintiff, a court finds the plaintiff's claims lack facial plausibility.” Warren Gen. Hosp. v. Amgen Inc., 643 F.3d 77, 84 (3d Cir. 2011) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-56 (2007)). In deciding the motion, the court may consider the facts alleged on the face of the complaint, as well as “documents incorporated into the complaint by reference, and matters of which a court may take judicial notice.” Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322 (2007). Although the court must accept the fact allegations in the complaint as true, it is not compelled to accept “unsupported conclusions and unwarranted inferences, or a legal conclusion couched as a factual allegation.” Morrow v. Balaski, 719 F.3d 160, 165 (3d Cir. 2013) (quoting Baraka v. McGreevey, 481 F.3d 187, 195 (3d Cir. 2007)). Nor is it required to credit factual allegations contradicted by indisputably authentic documents on which the complaint relies or matters of public record of which we may take judicial notice. In re Washington Mut. Inc., 741 Fed. App'x 88, 91 n.3 (3d Cir. Sept. 25, 2018); Sourovelis v. City of Philadelphia, 246 F.Supp.3d 1058, 1075 (E.D. Pa. 2017).
The plaintiff has brought this federal civil rights action under 42 U.S.C. § 1983. Section 1983 provides in pertinent part:
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress ....42 U.S.C. § 1983. Section 1983 does not create substantive rights, but instead provides remedies for rights established elsewhere. City of Oklahoma City v. Tuttle, 471 U.S. 808, 816 (1985). To establish a § 1983 claim, a plaintiff must establish that the defendant, acting under color of state law, deprived the plaintiff of a right secured by the United States Constitution. Mark v. Borough of Hatboro, 51 F.3d 1137, 1141 (3d Cir. 1995). To avoid dismissal for failure to state a claim, a civil rights complaint must state the conduct, time, place, and persons responsible for the alleged civil rights violations. Evancho v. Fisher, 423 F.3d 347, 353 (3d Cir. 2005).
The “under color of state law” element of § 1983 excludes from its reach “merely private conduct, no matter how discriminatory or wrongful.” Blum v. Yaretsky, 457 U.S. 991, 1002 (1982). Under the circumstances presented, the POA and the Community Manager-both of which are private organizations, not local governmental entities-are simply not state actors for the purposes of § 1983. See Kalian at Poconos, LLC v Saw Creek Ests. Cmty Ass'n, 275 F.Supp.2d 578, 588-90 (M.D. Pa. 2003); Midlake on Big Boulder Lake, Condo. Ass'n v. Cappuccio, 673 A.2d 340, 341 (Pa. Super. Ct. 1996). The mere possibility that the POA or Community Manager might seek to attach a lien to the property or enforce its rules through litigation does not convert them into state actors or their enforcement activities into state action. See Wallace v. Fed. Emps., 325 Fed. App'x 96, 102 (3d Cir. 2009) (per curiam) (“[L]itigation does not transform a private actor into an entity acting under color of state or federal law ....”) (internal quotation marks omitted); see also Clapp v. LeBoeuf, Lamb, Leiby & MacRae, 862 F.Supp. 1050, 1059 (S.D.N.Y. 1994). Moreover, “[t]he First Amendment prohibits governmental, not private, infringement of free speech.” Barr v. Camelot Forest Conservation Ass'n, 153 Fed App'x 860, 862 (3d Cir. 2005) (per curiam).
Accordingly, it is recommended that the plaintiff's § 1983 claims against the POA and the Community Manager be DISMISSED for failure to state a claim upon which relief can be granted, pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii). It is further recommended that the action be dismissed without leave to amend, as it is clear from the facts alleged that any amendment would be futile. See Grayson v. Mayview State Hosp., 293 F.3d 103, 108 (3d Cir. 2002). Finally, it is recommended that the Clerk be directed to mark this case as CLOSED.
NOTICE
NOTICE IS HEREBY GIVEN that the undersigned has entered the foregoing Report and Recommendation dated December 8, 2023. Any party may obtain a review of the Report and Recommendation pursuant to Local Rule 72.3, which provides:
Any party may object to a magistrate judge's proposed findings, recommendations or report addressing a motion or matter described in 28 U.S.C. § 636(b)(1)(B) or making a recommendation for the disposition of a prisoner case or a habeas corpus petition within fourteen (14) days after being served with a copy thereof. Such party shall file with the clerk of court, and serve on the magistrate judge and all parties, written objections which shall specifically identify the portions of the proposed findings, recommendations or report to which objection is made and the basis for such objections. The briefing requirements set forth in Local Rule 72.2 shall apply. A judge shall make a de novo
determination of those portions of the report or specified proposed findings or recommendations to which objection is made and may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge. The judge, however, need conduct a new hearing only in his or her discretion or where required by law, and may consider the record developed before the magistrate judge, making his or her own determination on the basis of that record. The judge may also receive further evidence, recall witnesses or recommit the matter to the magistrate judge with instructions.
Failure to file timely objections to the foregoing Report and Recommendation may constitute a waiver of any appellate rights.