PHILADELPHIA – A local man who alleged his civil rights were violated when his properties were respectively sold and demolished by the City of Philadelphia, will have another opportunity to plead his Fifth Amendment violation claims in a District Court after partially winning an appeal from the U.S. Court of Appeals for the Third Circuit.
In a per curiam ruling issued on Nov. 28, Third Circuit judges Joseph A. Greenaway Jr., David J. Porter and Richard L. Nygaard affirmed in part and vacated/remanded in part a ruling from the U.S. District Court for the Eastern District of Pennsylvania, in a case brought by Abraham Ituah against the City, the Philadelphia Police Department and a group of City employees.
“In October 2019, Ituah filed a pro se 42 U.S.C. Section 1983 action against the City, the Philadelphia Police Department and several City employees, alleging various constitutional violations arising from the City’s September 2015 sale of his property at 3843 Fairmount Avenue, and 2019 demolition of his property at 508 West Tabor Street. With regard to the Fairmount Property, following the September 2015 court-ordered sale, Ituah immediately filed a motion to set aside the sale in the state-court proceedings, and then litigated issues surrounding the sale in state court through at least December 2016,” the Third Circuit said.
“In November 2016, he filed a prior federal lawsuit claiming that the City and two City employees (neither of whom is named in the current suit) violated his due-process rights with respect to the sale of the Fairmount Property. In May 2017, the District Court granted the City’s motion to dismiss that case. In the current action, Ituah brought First Amendment retaliation claims, Fourth and Fifth Amendment claims related to the demolition of the Tabor Property, an equal-protection claim, and a claim related to City tax assessments. The District Court granted the City’s motion to dismiss Ituah’s amended complaint on several grounds, including, as relevant, the statute of limitations, issues of comity and failure to state a claim. The Court dismissed the claims against two of the named defendants with prejudice, and the claims against the rest of the defendants without prejudice. Ituah timely appealed.”
Ituah had alleged that in retaliation for filing his previous federal lawsuit against the City, Roslyn Speller, a City employee, refused to shut off the water account for a vacant building he owned, despite his three requests that she do so, ultimately resulting in water bills totaling $30,000, which he paid after he sold the building. However, the District Court held that Ituah failed to allege a causal link between the lawsuit and Speller’s alleged retaliation.
“We agree. Ituah failed to put forth any factual allegation in this regard, beyond his conclusory assertion that Speller retaliated against him for filing his lawsuit,” the appellate court said.
Ituah claimed also that City attorney Pamela Thurmond retaliated against him for filing for bankruptcy in New York, which necessitated her participation in the proceedings as an attorney for the City as one of Ituah’s creditors – and that she allegedly “engineered inaccurate bills collections and encouraged the licensing units to demolish [the Tabor Property].”
“The District Court held that Ituah had failed to state a claim as to any of the three elements of a retaliation claim. We disagree. With regard to the first element, the District Court narrowly construed Ituah’s pleadings as alleging that the retaliatory actions were in response only to his insistence that Thurmond attend in-person bankruptcy proceedings in New York because he would not consent to telephonic hearings,” the Third Circuit said.
“Affording Ituah’s pleadings a liberal construction…we more broadly read his pleadings as alleging that the retaliatory actions were in response to his initiation of bankruptcy proceedings in New York, which necessitated Thurmond’s participation. Along these lines, we hold that Ituah’s filing of a petition for bankruptcy protection in federal court was protected conduct for purposes of his retaliation claim. Further, we hold that the alleged slate of retaliatory actions, accepted as true, would deter a person of ordinary fitness from exercising their constitutional rights, and that Ituah has adequately alleged causation, given the temporal proximity between the dismissal of the bankruptcy proceedings and the alleged retaliatory actions.”
With regard to his Fourth Amendment claim, Ituah asserted a violation based on the demolition of the Tabor Property, alleging that City attorney Brendan Philbin, City Inspector Joseph Carroll and a John Doe police officer participated in the violation.
“In December 2018, the John Doe officer visited the property, declared it condemned, and asked the four tenants to vacate the building immediately. On Dec. 27, 2018, Carroll issued a condemnation notice. On Jan. 2, 2019, Ituah hired a structural engineer, who contended that the issues could be repaired, which Ituah conveyed to Philbin, to no avail,” the Third Circuit said.
“Philbin filed an action to demolish the property the same day. On Jan. 3, 2019, a hearing was held in the Philadelphia County Court of Common Pleas, and the Court granted the City’s request after the hearing. Ituah immediately appealed, but the property was demolished two weeks later.”
The demolition took place on Jan. 17, 2019.
“Appellees concede that the demolition of the Tabor Property constituted a seizure for Fourth Amendment purposes, but they contend that Ituah failed to allege facts indicating that the demolition was unreasonable. We agree. Here, based on Ituah’s allegations and brief, the demolition was carried out by a state-court order issued after a hearing. Ituah has failed to allege facts that could arguably fulfill the ‘laborious task’ of establishing the unreasonableness of the demolition. Accordingly, we will affirm the dismissal of Ituah’s Fourth Amendment claim,” the Third Circuit stated.
“However, we will vacate the dismissal of Ituah’s Fifth Amendment Takings Clause claim regarding the Tabor Property. The District Court dismissed this claim as unripe because Ituah had failed to plead any facts indicating that he had availed himself of the Pennsylvania state procedures available to him for seeking just compensation. Although appellees urge affirmance by arguing that ‘the City demolished an unsafe structure to further the legitimate purpose of promoting public safety, which was an appropriate exercise of the City’s police powers,’ these arguments rely on facts that are properly considered on summary judgment, not the motion-to-dismiss stage.”
The Third Circuit added that it affirmed the dismissal of the remainder of Ituah’s claims.
U.S. Court of Appeals for the Third Circuit case 21-1213
U.S. District Court for the Eastern District of Pennsylvania case 2:19-cv-05088
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com