Signore v. City of McKeesport, Pa.

• Decision Date: 03 March 1988
• Docket Number: Civ. A. No. 87-1383.
• Citation: 680 F. Supp. 200
• Parties: Andrew Del SIGNORE, Plaintiff, v. CITY OF McKEESPORT, PENNSYLVANIA, Mayor Lou Washwich, McKeesport City Council Members William Dougherty, James Honick, Carolyn W. Young, William Campbell, Sam R. Vidnovic, Joe F. Graziano and Charles D. Mikell, Police Chief James Lundie, Fire Chief Bazylac, Deputy Fire Chief Dellapenna, Building Inspector William Weissert, Ordinance Officer Joe Mulac, Ordinance Officer Mr. Kimber, City Solicitor John Cambest, Timothy Indyk Construction Co., Allegheny County Health Department, Middle Department Inspection Agency, Inc., Charles Indyk, Garth Indyk, Joseph Indyk, the Re-Development Authority of the City of McKeesport, Ted E. Jaworsky, Timothy Indyk, Edward Indyk, Ann Puc, McKeesport Department of Community Development, Defendants.
• Court: U.S. District Court — Eastern District of Pennsylvania

680 F. Supp. 200

Andrew Del SIGNORE, Plaintiff, v. CITY OF McKEESPORT, PENNSYLVANIA, Mayor Lou Washwich, McKeesport City Council Members William Dougherty, James Honick, Carolyn W. Young, William Campbell, Sam R. Vidnovic, Joe F. Graziano and Charles D. Mikell, Police Chief James Lundie, Fire Chief Bazylac, Deputy Fire Chief Dellapenna, Building Inspector William Weissert, Ordinance Officer Joe Mulac, Ordinance Officer Mr. Kimber, City Solicitor John Cambest, Timothy Indyk Construction Co., Allegheny County Health Department, Middle Department Inspection Agency, Inc., Charles Indyk, Garth Indyk, Joseph Indyk, the Re-Development Authority of the City of McKeesport, Ted E. Jaworsky, Timothy Indyk, Edward Indyk, Ann Puc, McKeesport Department of Community Development, Defendants.

Civ. A. No. 87-1383.

United States District Court, W.D. Pennsylvania.

March 3, 1988.

COPYRIGHT MATERIAL OMITTED

John F. Cambest, Pittsburgh, Pa., for City of McKeesport et al.

Pamela Ferguson, Pittsburgh, Pa., for Allegheny County Health Dept.

Frank G. Salpietro, Meyer, Unkovic & Scott, Pittsburgh, Pa., for Middle Dept. Inspection Agency, Inc. and Ted E. Jaworsky.

MEMORANDUM ORDER

COHILL, Chief Judge.

Presently before us are motions to dismiss (or in some cases alternative motions for summary judgment) filed by Middle Department Inspection Agency, Inc., its employee Theodore Javorsky (collectively "Middle Department"), City of McKeesport, et al. ("McKeesport"), Allegheny County Department of Health ("ACDH"), and Charles Indyk, all defendants in the above-captioned action. For the reasons set forth below, we find that plaintiff Andrew Del Signore's Complaint and Amended Petitions fail to state a claim for which relief may be granted. However, we will grant plaintiff leave to amend his deficient pleadings. Accordingly, will deny Middle Department's and Charles Indyk's Motion to Dismiss without prejudice. We will deny ACDH's and McKeesport's motions to dismiss, in part, without prejudice, and will reserve ruling on other portions of their motions.

I. BACKGROUND

Each motion to dismiss challenges, on various grounds, the sufficiency of plaintiff's Complaint and two "Amended Petitions." The plaintiff's pleadings are obscure, to say the least, but we will attempt to summarize them here. The plaintiff alleges jurisdiction of this court under 42 U.S.C. § 1983. He asserts that on June 29, 1985, the defendants conducted a "complete confiscation of his lifes possessions —smashed, confiscated and or trucked away to a dump," and "unlawful restaint (jailment) while smash confiscation of all of lifes possessions were purpetrated upon plaintiff."¹ Plaintiff's Complaint, p. 4. He alleges that this occurred at his house on 1802 Packer Street, McKeesport, Pennsylvania. Id. at 3.

The plaintiff claims that the defendants took such actions in violation of his following federal constitutional rights;

1. His "right to live on earth and garner the gifts which creator made for men to have and enjoy,"

2. His right to "pursue happiness thru life and liberty to do so,"

3. His right to own "objects of earthly made substances and or objects which give him joy in living,"

4. His right to "own property and manage it for his life and his family life benefit," and

5. His right "to not be handed a total confiscation of his valuable possessions, worth `thousands' and rendered homeless into the middle of public `through fare' empty handed and just the clothes on his back."

Plaintiff's Complaint, p. 3.

II. DISCUSSION

Section 1983 provides;

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.

The purpose of Section 1983 is to provide a civil action to protect persons against the misuse of power possessed by virtue of state law and made possible because the defendant was clothed with the authority of the state. Jobson v. Henne, 355 F.2d 129, 133 (2nd Cir.1966). This section does not create a federal cause of action but is a remedy for the vindication of other federal statutory or constitutional rights. Carbonell v. Louisiana Dept. of Health & Human Resources, 772 F.2d 185, 188 (5th Cir.1985).

To state a cause of action under Section 1983, a plaintiff must plead several elements as to each defendant. First, the plaintiff must allege that he has been deprived of a right, privilege, or immunity secured by the Constitution, laws, or treaties of the United States. Bradt v. Smith, 634 F.2d 796, 799 (5th Cir.1981), cert. denied, 454 U.S. 830, 102 S.Ct. 125, 70 L.Ed.2d 106 (1981); Bird v. Summit County, Ohio, 730 F.2d 442, 444 (6th Cir.1984). It is not required that the complaint set out the particular portion of the Constitution or law securing the right of which he claims to have been deprived, it is only necessary that the "court ascertain from the confines of the Constitution that such a right exists." Williams v. Stone, 339 F.Supp. 1298, 1299 (E.D.Tenn.1971).

Second, the plaintiff must allege that the defendant subjected the plaintiff to this deprivation, or caused him to be so subjected. United States ex rel Smith v. Robinson, 495 F.Supp. 696, 698 (E.D.Pa. 1980). The plaintiff must state specifically how each defendant was personally involved in the deprivation. Ressler v. Scheipe, 505 F.Supp. 155, 156 (E.D.Pa. 1981). The plaintiff must therefore allege some causal link between the official conduct and the alleged deprivation. Prochaska v. Fediaczko, 473 F.Supp. 704, 708 (W.D.Pa.1979).

Lastly, the plaintiff must allege that the defendant acted under color of a statute, ordinance, regulation, custom, or usage of a State. Kletschka v. Driver, 411 F.2d 436, 447 (2nd Cir.1969). This allegation requirement is met when the plaintiff alleges the misuse of power, possessed by virtue of state law and made possible only because the wrongdoer is clothed with authority of state law. Di Maggio v. O'Brien, 497 F.Supp. 870, 874 (E.D.Pa. 1980). It is not necessary to allege that the action taken was authorized by the state as long as facts are stated which show that the defendant was clothed with the authority of the state and was purporting to act thereunder. Sykes v. California, 497 F.2d 197, 200 n. 2 (9th Cir.1974).

While these are demanding pleading requirements, the pleadings of pro se civil rights complaintants are to be construed liberally. Henderson v. Fisher, 631 F.2d 1115, 1117 (3rd Cir.1980); Loe v. Armistead, 582 F.2d 1291, 1295 (4th Cir.1978). They are to be held to less stringent standards than pleadings drafted by lawyers. Haines v. Kerner, 404 U.S. 519, 520, 92 S.Ct. 594, 595, 30 L.Ed.2d 652 (1972). The Supreme Court has stated that in order for a civil rights action to be dismissed due to failure to state a claim, it must appear "beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Haines, 404 U.S. at 520, 92 S.Ct. at 595.

The Third Circuit Court of Appeals finds this rule to be applicable, however, only when specific allegations of unconstitutional conduct are made. Rotolo v. Borough of Charleroi, 532 F.2d 920, 922 (3rd Cir.1976). That court still adheres to the rule that civil rights complaints must be pleaded with specificity so that frivolous and insubstantial cases may be immediately dismissed. Id. Thus, allegations that are overbroad and unsupported by specific factual averments are insufficient to state a claim upon which relief may be granted. Crowder v. Jackson, 527 F.Supp. 1004, 1006 (W.D.Pa.1981); Di Maggio, 497 F.Supp. at 875.

We will now turn to the motions to dismiss filed by Middle Department, ACDH, and McKeesport. Each motion alleges, inter alia, that the plaintiff's allegations are inadequate to state a claim for relief under Section 1983 and therefore that plaintiff's Complaint should be dismissed under Federal Rule of Civil Procedure 12(b)(6).

The only reference that plaintiff makes to Middle Department, other than in the caption of plaintiff's "Amended Petition", is the following sentence in that document: "Mr. (person referred to as `Inspector') a person employed by Middle Department who came to `Andy's' (herein) dwelling, house, helped `burst in' the front door of `Andy's' 1802 Packer St. house, entered and trespassed thru-in there to inspect electrical wiring, didn't have, and was not `Andy's' permission to do so." Plaintiff's Amended Petition, p. 2.

Construing this allegation liberally, we find that it fails to state a cause of action under Section 1983 against Middle Department. First, there are no specific factual averments that explain how Middle Department was personally involved in the alleged deprivation of plaintiff's rights when the defendants allegedly "confiscated his life's possessions." Second, this reference to Middle Department lacks an allegation supported by fact that any conduct of Middle Department, or its employees, was undertaken in an official capacity or under color of state law. Middle Department is a private entity which may not be sued under Section 1983 unless it was so significantly and substantially interwoven with state and local governments that a symbiotic relationship existed between the two and the acts of the entity can be reasonably said to be the acts of the political state. Burton v. Wilmington Parking Authority, 365 U.S. 715, 722, 81 S.Ct. 856, 860, 6 L.Ed.2d 45 (1961). Absent any factual averments that such a relationship existed here, the "color of law" pleading requirement has not been met. See Drusky v. Judges of Supreme Court, 324 F.Supp. 332, 333 (W.D.Pa.1971) (failure to allege that defenda...