McShane v. Morris
| Decision Date | 02 September 2021 |
| Docket Number | Civil Action 3:21-1505 |
| Parties | MATTHEW McSHANE, Plaintiff v. KEN MORRIS, MONROE COUNTY SHERIFF, et al., Defendants |
| Court | U.S. District Court — Middle District of Pennsylvania |
On August 31, 2021, plaintiff Matthew McShane, “of the lawful Clan McShane”, filed pro se, “in his lawful capacity as beneficiary of the Public Estate Trust entitled “MATTHEW MCSHANE”, a so-called “Petition for Quia Timet Injunction” and “Estoppel of Void Writ of Eviction”, seemingly alleging violations of his constitutional rights under 42 U.S.C. §1983, against defendants Ken Morris Sheriff of Monroe County, Pennsylvania, the Monroe County Sheriff's Department, and its “Deputies, Agents and Assigns”, as well as Monroe County. (Doc. 1). Plaintiff paid the filing fee. The court liberally construes plaintiff's pro se filing to be an Emergency Motion for a Preliminary Injunction to stop the Monroe County Sheriff from evicting him on September 5, 2021, i.e., 10 days after he was served with the Sheriff's Notice for plaintiff to vacate his former premises located at 935 Gilbert Road, Effort, Pennsylvania.
Plaintiff's filing appears to be in regards to a Monroe County Court Upset Tax Sale in which a judgment was obtained against plaintiff for possession of his Gilbert Road property. After the judgment was entered against plaintiff, it appears that a Sheriff's Sale of his property was held and that Anthony Malinowski and Marek Tchorzewski purchased the property. The purchasers then obtained a Writ of Possession for the property in the Monroe County Court directing the Sheriff's Office to deliver possession of the stated property to the purchasers “[t]o satisfy the judgment of possession.” See Monroe County Court No. 6725 Civil 2020. (Doc. 1-1). Plaintiff now alleges that he is still the lawful owner of the real property located at 935 Gilbert Road Effort, Pennsylvania, (“subject property”), despite the fact that his property was seemingly sold at a Sheriff's Sale. More recently, on August 26, 2021, he was ordered to vacate the premises within 10 days. The Notice served upon plaintiff by the Sheriff's Office also indicates that “the law authorizes [the Sheriff] to use, and [he] must use, such force as may be necessary to enter upon the property, …, and to eject [plaintiff] and all unauthorized occupants.”
Plaintiff is construed as seeking injunctive relief to prevent his eviction from the subject property. Since plaintiff essentially seeks an injunction to prevent his September 5, 2021 eviction from the subject property, this case was referred to the undersigned as an emergency matter.
The jurisdiction of this court over this case appears to be requested pursuant to 28 U.S.C. §1331 and 28 U.S.C. §1343(a) because plaintiff is deemed as averring violations of his constitutional due process rights under the Fourth and Fourteenth Amendments of the U.S. Constitution. Venue is appropriate in this court since the alleged unlawful conduct occurred in this district and all parties are located here. See 28 U.S.C. §1391.
After reviewing plaintiff's filings, the court will deny plaintiff's request for immediate injunctive relief. The court also will dismiss plaintiff's due process claims relating to his eviction with prejudice for lack of jurisdiction.
To state a claim under section 1983, a plaintiff must meet two threshold requirements: 1) that the alleged misconduct was committed by a person acting under color of state law; and 2) that as a result, she was deprived of rights, privileges, or immunities secured by the Constitution or laws of the United States. West v. Atkins, 487 U.S. 42 (1988); Parratt v. Taylor, 451 U.S. 527, 535 (1981), overruled in part on other grounds, Daniels v. Williams, 474 U.S. 327, 330-331 (1986). If a defendant fails to act under color of state law when engaged in the alleged misconduct, a civil rights claim under section 1983 fails as a matter of jurisdiction, Polk Cnty. v. Dodson, 454 U.S. 312, 315 (1981), and there is no need to determine whether a federal right has been violated. Rendell-Baker v. Kohn, 457 U.S. 830, 838 (1982).
“A defendant in a civil rights action must have personal involvement in the alleged wrongs; liability cannot be predicated solely on the operation of respondeat superior.” Rode v. Dellarciprete, 845 F.2d 1195, 1207-08 (3d Cir. 1988). See also Sutton v. Rasheed, 323 F.3d 236, 249 (3d Cir. 2003)(citing Rode). “Personal involvement can be shown through allegations of personal direction or of actual knowledge and acquiescence.” Rode, 845 F.2d at 1207. Accord Robinson v. City of Pittsburgh, 120 F.3d 1286, 1293-96 (3d Cir. 1997); Baker v. Monroe Twp., 50 F.3d 1186, 1190-91 (3d Cir. 1995).
The grant of injunctive relief, including preliminary injunctive relief, is an extraordinary remedy and it should only be granted in limited circumstances. Am. Tel. & Tel. Co. v. Winback & Conserve Program, Inc., 42 F.3d 1421, 1426-27 (3d Cir. 1994) (quoting Frank's GMC Truck Cent., Inc. v. Gen. Motors Corp., 847 F.2d 100, 102 (3d Cir. 1988)) (alterations in original). The court's ultimate decision to deny a preliminary injunction is discretionary, though legal and factual determinations will be reviewed according to their normal standard. See Tenafly Eruv Ass'n, Inc. v. Borough of Tenafly, 309 F.3d 144, 156 (3d Cir. 2002).
In order to obtain a preliminary injunction, the moving party must demonstrate the following:
(1) the likelihood that the plaintiff will prevail on the merits at final hearing; (2) the extent to which the plaintiff is being irreparably harmed by the conduct complained of; (3) the extent to which the defendant will suffer irreparable harm if the preliminary injunction is issued; and (4) the public interest.
Id. at 1427 (quoting Merchants & Evans, Inc. v. Roosevelt Bldg. Prods., 963 F.2d 628, 623-33 (3d Cir. 1992)). More specifically, the third prong requires a balancing of harms between the plaintiff and the defendant and a finding that the balance favors the plaintiff's request for relief. See Issa v. Sch. Dist. of Lancaster, 847 F.3d 121, 131 (3d Cir. 2017).
“The injunction should issue only if the plaintiff produces evidence sufficient to convince the district court that all four factors favor preliminary relief.” Id. Moreover, it is only if the first two prongs are satisfied that the court must inquire into the final two factors. Tenafly, 309 F.3d at 157. Thus, “a failure to show a likelihood of success or a failure to demonstrate irreparable injury must necessarily result in the denial of a preliminary injunction.” In Re Arthur Treacher's Franchise Litig., 689 F.2d 1137, 1143 (3d Cir. 1982). However, if a plaintiff proves the first two requirements, it will almost always be the case that the public interest favors preliminary relief, Issa, 847 F.3d at 143, leaving the crux of the matter to the balance of competing interests.
Although not artfully written, plaintiff appears to claim in his Petition that his constitutional rights under the Fourth and Fourteenth Amendments were violated by the selling of his property at a Monroe County Tax Sale without due process.[2]
As discussed above, the alleged facts in the Petition and Exhibits indicate that Anthony Malinowski and Marek Tchorzewski purchased the subject property at a Tax Sale in 2019, and then obtained a Writ of Possession in Monroe County Court on August 24, 2021 for the subject property which directs the Sheriff to deliver possession of the property to them as lawful owners of the property. The Monroe County Sheriff's Office then notified plaintiff on August 26, 2021 that he must vacate the property by September 5, 2021, or that he, and all other occupants, will be physically ejected from the property. Plaintiff states that he is “in fear for [his] life and the life of [his] young progeny due to imminent threat of harm by the [Sheriff] … to use deadly weapons [on September 5, 2021] to evict [them] from [their] non-commercial shelter and steal [his] interest in Estate Property in the continuing conspiracy by Public Servants to deprive [him] of [his] equitable rights to said property by the use of color of law.” (Doc. 1 at 1). Plaintiff also claims that the Writ of Eviction is a “Void” document and that “[n]o hearing was ever held to lawfully seize Estate [subject] Property prior to an Upset Tax Sale [on September 11, 2019”]. Plaintiff thus alleges that the Tax Sale of his property in Monroe County was “unlawful” and that all of his attempts to “correct the record” were ignored.
Plaintiff also indicates that he recently filed an action against the Sheriff on August 11, 2021 in Monroe County Court regarding his “Estate Property” and, thus he claims that he has tried to address the matter “without relief or remedy ‘at law' in the [County Court].” Plaintiff does not indicate the outcome, if any, of his recent state court action, filed only 20 days before he filed his instant Petition with federal court, which was seemingly filed to stay his eviction.
As such, plaintiff seeks this federal court to protect his alleged “equitable interest in Estate Property” and to enjoin the Sheriff and his Deputies from evicting him and his family from the Gilbert Road property.
Plaintiff also requests this court to issue an injunction order against the Sheriff as “an estoppel to his impending threat of physical harm to life and limb and Levy of property interests” since his property was allegedly sold at an “unlawful” Tax Sale without his consent and without just compensation. As stated, plaintiff is scheduled to be evicted from the property on September 5, 2021, if he refuses to voluntarily leave the...
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