MILES v. LANSDOWNE BORO et al
Filing
23
MEMORANDUM AND/OR OPINION RE: MOTION TO DISMISS. SIGNED BY HONORABLE HARVEY BARTLE, III ON 10/13/2011. 10/13/2011 ENTERED AND COPIES E-MAILED.(tomg, )
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IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
CLAUDETTE M. MILES, et al.
v.
LANSDOWNE BOROUGH, et al.
:
:
:
:
:
CIVIL ACTION
NO. 11-1913
MEMORANDUM
Bartle, J.
October 13, 2011
Plaintiffs Claudette M. Miles ("Miles") and Women of
War Ministries (the "Ministry") bring this action for violation
of their civil rights under 42 U.S.C. § 1983 and the Religious
Land Use and Institutionalized Persons Act of 2000, 42 U.S.C.
§ 2000cc, against Lansdowne Borough, John P. Gould ("Gould"),
Mike Jozwiak ("Jozwiak"), Daniel J. Kortan, Jr. ("Kortan"), John
J. Perfetti ("Perfetti") and Delaware County.
The plaintiffs
have also brought supplemental state law claims for abuse of
process, malicious prosecution, and false arrest.
Before the
court is the motion of defendants Lansdowne Borough, Gould,
Jozwiak, and Kortan to dismiss plaintiffs' Second Amended
Complaint for failure to state any claim upon which relief may be
granted under Rule 12(b)(6) of the Federal Rules of Civil
Procedure.
I.
When deciding a motion to dismiss under Rule 12(b)(6),
the court must accept as true all factual allegations in the
complaint and draw all inferences in the light most favorable to
the plaintiff.
Phillips v. Cnty. of Allegheny, 515 F.3d 224, 233
(3d Cir. 2008); Umland v. Planco Fin. Servs., Inc., 542 F.3d 59,
64 (3d Cir. 2008).
We must then determine whether the pleading
at issue "contain[s] sufficient factual matter, accepted as true,
to 'state a claim for relief that is plausible on its face.'"
Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (citing Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)).
II.
The following facts are viewed in the light most
favorable to the plaintiffs.
The incidents that give rise to
their claims began in 2004, when the Ministry purchased property
within the Borough of Lansdowne (the "Borough").
That year, the
Ministry applied for a permit for use, occupancy, and
construction which was denied in 2005 because it was a church.
After the denial, the Ministry received repeated citations and
fines for various property violations such as chipped paint and
failure to remove snow.
Plaintiffs allege that these citations
and fines were unjustified and used to harass the Ministry,
exhaust its resources, and force it to abandon its desire to use
the property.
In 2008, the Borough enacted a new zoning code which
prohibited churches from all zoning areas except for "a fully
occupied residential zone which had no available properties."
Also in 2008, the Ministry met with a tax assessor and reached an
agreement to pay $1,000 monthly on arrearages for the property.
The Ministry met this payment schedule until August 2010 when the
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Borough's tax assessor's office refused to accept further
payments under the agreement.
On March 20, 2009, Miles, acting in her capacity as
Executive Director of the Ministry, went to the offices of
Jozwiak, the Borough's Director of Zoning and Code Enforcement,
and Gould, the Borough's Senior Code Enforcement Officer, to
apply for a construction permit to address code citations against
the property.
While she was waiting for an application, Gould
arrived with a police officer who placed Miles under arrest.
At
this time, Miles was told that an arrest warrant against her had
been issued by John J. Perfetti, a Magisterial District Judge,
for failure to pay fines arising from code citations against the
Ministry's property.
Miles did not previously have notice of the
arrest warrant.
At or about 4:00 p.m. on the day of her arrest, Miles
appeared before another Magisterial District Judge who told Miles
that he must enforce the warrant either by collecting the fines
from Miles within the hour before the court closed or by ordering
her incarceration.
Miles told him she did not personally have
the money to pay the fines and that she would be unable to reach
the Ministry's members or congregants to produce the money within
the hour.
He then ordered Miles to be incarcerated for
nonpayment of the fines.
Miles was incarcerated at the George W.
Hill Correctional Facility from Friday, March 20, 2011 to Monday,
March 23, 2011 at about 9:00 p.m.
In May 2009, the case against
Miles "was overturned" because the warrant on the code citation
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was issued in the name of Miles personally and not in the name of
the Ministry, which owned the property.
Between about October 2009 and February 2010, the
Ministry hired a licensed roofer who obtained a construction
permit to remedy a code citation regarding a leaking roof.
After
about 15% of the work was completed and paid for, Jozwiak and
Gould, as the Borough's employees, ordered that the work be
stopped.
As a result the property was exposed with an opening in
its roof which resulted in water damage and further deterioration
of the roof.
Jozwiak and Gould then had the Ministry hire a
structural engineer, who in March 2010 found that repairing the
roof would cost $125,000, which would exceed the value of the
property.
The Ministry thereafter filed a new permit application
in April 2010, which was denied by Jozwiak on behalf of the
Borough in July 2010.
The Ministry then met with Gould to
discuss what other options were available, and Gould informed it
that "the only place their church could get a permit was at this
one property on the zoning map where a church was already being
operated and therefore was not available."
III.
We first turn to the defendants' contention that Count
I of plaintiffs' Second Amended Complaint is barred by the two
year statute of limitations for claims under 42 U.S.C. § 1983.
Goodman v. Lukens Steel Co., 777 F.2d 113, 120-21 (3d Cir. 1985).
Count I of the Second Amended Complaint alleges that Miles'
incarceration from March 20, 2009 to March 23, 2009 violated due
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process protections under 42 U.S.C. § 1983.
have been filed in this case:
Three complaints
the original Complaint, the
Amended Complaint, and the Second Amended Complaint.
Miles,
acting pro se and as the sole plaintiff, constructively filed the
original Complaint within the statute of limitations on March 17,
2011, the date the clerk received the complaint.1
McDowell v.
Delaware State Police, 88 F.3d 188, 191 (3d Cir. 1996).
The
original Complaint was filed against defendants "unknown white
male (legal counsel for Lansdowne Boro [sic])," "unknown white
male (code enforcement agent)," "unknown white male (arresting
officer)," John P. Gould, and the Borough.
Miles then, still
acting pro se and as the sole plaintiff, filed the Amended
Complaint June 2, 2011 against the same defendants as the
original Complaint.
Miles, now joined by the Ministry as a second
plaintiff2 and now represented by counsel, filed the Second
1. The docket shows that the clerk of court received Miles'
complaint with an application to proceed in forma pauperis on
March 17, 2011. Miles was granted leave to proceed in forma
pauperis on March 22, 2011 and the complaint was filed on that
day.
2. Although the Ministry was not a plaintiff in the original
Complaint, it is only involved in Count III of the Second Amended
Complaint, which arises under the Religious Land Use and
Institutionalized Persons Act (RLUIPA). "It is undisputed that
the four-year catch-all federal statute of limitations, codified
at 28 U.S.C. § 1658(a), governs claims brought under RLUIPA."
Congregation Adas Yereim v. City of New York, 673 F. Supp. 2d 94,
107 (E.D.N.Y. 2009) (citations omitted).
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Amended Complaint on August 31, 2011.3
In the Second Amended
Complaint, the plaintiffs changed the "unknown white male"
defendants to Mike Jozwiak (as agent and code enforcement officer
of Lansdowne Borough) and Daniel J. Kortan, Jr. (as agent and
police chief of Lansdowne Borough).
The plaintiffs also added as
defendants "John J. Perfetti (in his capacity as Delaware Country
District Court Magistrate for Borough of Lansdowne [sic])" and
Delaware County.4
Defendants Jozwiak and Kortan allege that the statute
of limitations expired on the Count I claims against them because
they were not named defendants in the original Complaint.
The
Second Amended Complaint, however, relates back to the original
Complaint under Rule 15(c)(1) of the Federal Rules of Civil
Procedure.
Rule 15(c)(1) provides:
An amendment to a pleading relates back to
the date of the original pleading when ...
the amendment changes the party or the naming
of the party against whom a claim is
asserted, if [the amendment asserts a claim
or defense that arose out of the conduct,
transaction, or occurrence set out--or
attempted to be set out--in the original
pleading] and if, within the period provided
by Rule 4(m) for serving the summons and
complaint, the party to be brought in by
amendment: (i) received such notice of the
action that it will not be prejudiced in
defending on the merits; and (ii) knew or
should have known that the action would have
3. The defendants appear to dispute when the Second Amended
Complaint was filed. The plaintiffs filed the Second Amended
Complaint electronically on August 31, 2011 and then refiled it
in hard copy on September 2, 2011.
4.
Perfetti and Delaware County are not parties to this motion.
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been brought against it, but for a mistake
concerning the proper party's identity.
Here, Count I of the Second Amended Complaint arises
out of Miles' March 2009 incarceration, which is the same
conduct, transaction, or occurrence set out in the original
Complaint.
Furthermore, notice may be imputed to a newly-named
defendant where:
(1) the newly-named defendant and original
defendant are represented by the same counsel; or (2) the newlynamed defendant is related to the original defendant such that
they share an identity of interest.
Singletary v. Pa. Dep't of
Corr., 266 F.3d 186, 196-200 (3d Cir. 2001).
"Identity of
interest generally means that the parties are so closely related
in their business operations or other activities that the
institution of an action against one serves to provide notice of
the litigation to the other."
Id. at 197 (citing 6A Charles A.
Wright et al., Federal Practice And Procedure § 1499, at 146 (2d
ed. 1990)).
Defense counsel here made his initial appearance on
behalf of both the Borough and the "unknown white male"
defendants.
Id. at 199; see also Docket No. 5.
As a result,
these defendants, Jozwiak and Kortan, were on constructive notice
regarding the suit through their shared attorney and will not be
prejudiced if the complaint is amended to name them as
defendants.
See Singletary, 266 F.3d at 196-200.
The amendment of a complaint to substitute the actual
name of a defendant for an "Unknown Person" defendant constitutes
a "mistake concerning the proper party's identity."
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See id. at
200 (citing Varlack v. SWC Carribean, Inc., 550 F.2d 171, 175 (3d
Cir. 1997)).
Thus, the third and last requirement for relation
back is met as to Jozwiak and Kortan.
See Fed. R. Civ. P.
15(c)(1)(C)(ii).
Gould alleges that the statute of limitations expired
on the Count I claims against him because he was not included in
the § 1983 count in the original Complaint.
Although Miles'
original Complaint is admittedly unclear at times, she includes
Gould in her constitutional claims in Paragraph No. 35 of her
initial background paragraphs, when she states, "As a result of
the joint and several actions of defendants, Gould, 'Unknown
White male code enforcement agent', 'Unknown white male arresting
officer' and 'Unknown white male boro Counsel and Lansdowne Boro,
Plaintiff was arrested in error."
While Miles does not
specifically include Gould in Count I, she does incorporate
Paragraph Nos. 1-37 into Count I.
Furthermore, in reviewing
Miles' original pro se Complaint, we are mindful that a pleading
"filed pro se is to be liberally construed, and a pro se
complaint, however inartfully pleaded, must be held to less
stringent standards than formal pleadings drafted by lawyers.”
Erickson v. Pardus, 551 U.S. 89, 94 (2007) (internal quotations
and citations omitted).
IV.
We next turn to the defendants' contention that Counts
I and II of the Second Amended Complaint do not state a claim
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upon which relief can be granted under § 1983.5
The defendants
argue that the plaintiffs fail to plead a specific Constitutional
protection or amendment that was violated, which they claim is
required to plead a claim under § 1983.
The cases cited by the
defendants, however, do not stand for this proposition.
Rather,
these cases state that to establish a claim under § 1983
plaintiffs must plead that there was a violation of a right
secured by the Constitution and the laws of the United States.
See Mark v. Borough of Hatboro, 51 F.3d 1137, 1141 (3d Cir.
1995); Moore v. Tartler, 986 F.2d 682, 685.
In the Second
Amended Complaint, both Counts I and II state that the
defendants' conduct "directly violated the due process
protections afforded plaintiff Miles under 42 U.S.C. § 1983."
Thus, the plaintiffs properly plead that there was a violation of
a right secured by the Constitution and accordingly state a claim
under § 1983.
V.
The defendants also contend that the plaintiffs fail to
plead any cognizable supplemental state claims.
Count IV of the
plaintiffs' Second Amended Complaint pleads ancillary state
claims for abuse of process, malicious prosecution, and false
5. The defendants also contend that the plaintiffs' § 1981
counts should be dismissed for failing to state a cause of
action. The plaintiffs, however, stipulate that any § 1981 claim
in the Second Amended Complaint was a typographical error.
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arrest6 of plaintiff Miles by Gould, Jozwiak, Kortan, the
Borough, Perfetti, and Delaware County.
The defendants argue that Miles fails to plead a claim
for malicious prosecution because she does not plead that there
was any criminal proceeding that ended in her favor, which is one
of the elements for a malicious prosecution claim.
However, in
Paragraph No. 81 of the Second Amended Complaint, the plaintiffs
aver:
During or about May 2009 attorney Scott
Shields (now deceased) appeared before
defendant Perfetti on behalf of plaintiffs
Miles and the Ministry and the case against
plaintiff Miles was overturned on the basis
that the warrant on the code citation was
issued in the name of plaintiff Miles
personally and not in the name of the
Ministry which is the owner of the property.
Thus, Miles has pleaded that there was a criminal proceeding that
ended in her favor.
Accordingly, we will not dismiss plaintiffs'
state law claim of malicious prosecution.
The defendants next argue that the plaintiffs failed to
assert a claim for abuse of process.
Both the defendants and the
plaintiffs agree that the "elements of a claim for abuse of
process are (1) that a party used a legal process against another
party; (2) the legal process was used primarily to accomplish a
purpose for which the process was not designed; and (3) harm was
caused to the other party."
United States ex rel. Magid v.
Wilderman, No. 96-4346, 2005 U.S. Dist. LEXIS 2926, *8 (E.D. Pa.
6. The defendants do not appear to argue that the plaintiffs
failed to plead a claim for false arrest.
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Feb. 28, 2005) (citing McGee v. Feege, 517 Pa. 247, 259 (1987)).
The defendants specifically contend that the plaintiffs do not
plead the second element.
However, the plaintiffs' allegation
that the legal process was used to harass Miles and that the
defendants knew Miles was not a proper party to the legal
proceedings is sufficient at this stage to state that "the legal
process was used primarily to accomplish a purpose for which the
process was not designed."
Accordingly, for the reasons outlined above, the motion
of defendants Gould, Jozwiak, Kortan, and the Borough to dismiss
Plaintiffs' Second Amended Complaint will be denied.
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