Third Circuit says Darby landlord not subject to ethnic discrimination, affirms trial court dismissal

By Nicholas Malfitano | Dec 29, 2016

PHILADELPHIA -- A federal appeals court has affirmed the trial court dismissal of a New York man and Pennsylvania landlord who claims a local municipality discriminated against him based on his country of ethnic origin.

On Dec. 22, Judges D. Michael Fisher, L. Felipe Restrepo and Anthony J. Scirica for the U.S. Court of Appeals for the Third Circuit ruled in a per curiam decision to affirm a dismissal from the U.S. District Court for the Eastern District of Pennsylvania against plaintiff Abdus Shahid of Brooklyn, N.Y., and in favor of the defendant, the Borough of Darby.

Shahid is a U.S. citizen with ancestry from Bangladesh, who owns property in Delaware County and has filed several lawsuits under 42 U.S.C. Section 1983. These suits claim “various municipalities have discriminated against him on the basis of his national origin” and in one suit he claimed the Borough of Darby did so by “issuing numerous citations regarding a 10-unit warehouse building that he purchased in 2006.”

The district court entered judgment in the Borough’s favor following a bench trial, and the Third Circuit affirmed. The separate, instant complaint concerns the very same warehouse.

In 2015, Shahid filed a complaint under Section 1983, alleging the Borough of Darby was “preventing him from leasing all 10 units of the warehouse in order to punish him for his national origin.”

Furthermore, Shahid claimed “one of his tenants set fire to the warehouse in January 2015, and that the tenant was an ‘agent’ of the Borough” and another tenant caused extensive damage to another unit.

In response to a motion from the Borough, the district court “dismissed Shahid’s complaint without prejudice, due to his inability to file an amended complaint alleging with specificity how the Borough had harmed him.”

Shahid then filed an amended complaint, this time alleging the Borough: “(1) failed to approve any rentals after the date of the fire; (2) condemned the entire property even though the fire damaged only two of the units; (3) prevented him from performing maintenance on the property; (4) refused to arrest someone who stole pipes and other materials from the property; and (5) gave unspecified letters to two tenants to assist them in court proceedings that Shahid brought against them.”

The Borough filed a motion to dismiss Shahid’s amended complaint as well, which the district court granted with prejudice -- leading Shahid to appeal.

“A Section 1983 claim premised on discrimination/denial of equal protection requires a showing of purposeful discrimination. In this case, the District Court concluded that Shahid failed to state a plausible claim that the Borough discriminated against him and that further amendment would be futile. We agree,” the Third Circuit judges said.

“Shahid’s amended complaint contains only one specific allegation that even arguably raises an inference of discrimination. Shahid alleges that the Borough condemned his property in January of 2015 and prevented him from renting any of his ten units, but that ‘the previous American-born landlord rented as many units as possible. Thus, Darby Borough’s discriminatory policy or custom caused the underlying constitutional violation,” the Third Circuit pointed out.

The district court concluded Shahid didn’t prove discrimination because the former “American-born landlord” was not similarly situated. Specifically, the court noted that the previous landlord in question “owned the property before the fire leading to the condemnation,” and “concluded that damage caused by another tenant as alleged in Shahid’s initial complaint contributed to his inability to lease units as well.”

The Third Circuit said Shahid’s challenging of the district court’s reliance on allegations contained only in his initial complaint was “immaterial.”

“Shahid’s amended complaint and the materials attached to his response in opposition to the Borough’s motion to dismiss continued to refer to the fire that he alleges prompted the condemnation. Thus, the mere fact that a previous American-born landlord was able to lease more units does not raise any inference that the Board had or exercised any discriminatory animus towards Shahid,” the Third Circuit said.

The Third Circuit also stated none of Shahid’s other allegations allege discriminatory animus against him.

“Shahid alleges, for example, that Borough police refused to arrest someone whom Shahid claims stole various items from his property even though he identified the suspect. Shahid attributes that refusal to Borough President Janice Davis, whom he claims met with police before he did,” the Third Circuit wrote. “Shahid alleges, however, that ‘what she told police supervisor plaintiff does not know.’ Shahid also alleges that the Borough condemned his entire property even though an engineer’s report stated that the fire damage was limited to only two units.

“Shahid, however, has not alleged anything about these circumstances that raises any inference of discrimination. These allegations aside, Shahid’s allegations of discrimination are entirely conclusory, and conclusory allegations are not sufficient to survive a motion to dismiss.”

The Third Circuit added, “Finally, Shahid does not argue that the District Court should have given him leave to further amend, and nothing in Shahid’s filings in the District Court or this Court suggests that doing so would be anything other than futile.”

The defendant is represented by Mark Alan Raith of Holsten & Associates, in Media.

U.S. Court of Appeals for the Third Circuit case 16-2542

U.S. District Court for the Eastern District of Pennsylvania case 2:15-cv-00533

From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at

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