PHILADELPHIA – A federal judge’s grant of summary judgment to a trio of officials from the City of Philadelphia, which ended a local man’s litigation that alleged his civil rights were violated when his properties were sold and demolished by the City, is being appealed to the U.S. Court of Appeals for the Third Circuit.
In an initial per curiam ruling issued on Nov. 28, 2022, 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.
After the case was remanded to the lower court, defendants Thurmond, Philbin and Carroll moved for summary judgment on the remaining claims.
U.S. District Court for the Eastern District of Pennsylvania Judge Gerald L. Pappert granted that motion, in a memorandum opinion handed down on Nov. 6.
“Ituah’s retaliation claim fails because there is no record evidence showing that Thurmond engaged in any alleged retaliation, or a causal link between such retaliation and Ituah’s initiation of bankruptcy proceedings. There is no evidence Thurmond had any connection to the demolition of the Tabor Property. Ituah claims Thurmond should have known what actions others in the City government were allegedly taking against him, but a defendant in a civil rights action must be personally involved in the alleged wrongs,” Pappert said.
“The record includes no evidence of Thurmond’s personal involvement in the demolition, any contact with officials in the Department of License and Inspection regarding Ituah’s properties, or any knowledge of the Tabor Property’s violation and demolition before Ituah sued Thurmond in this case. And there is no evidence supporting Ituah’s belief that the proximity of the New York bankruptcy case’s dismissal and the demolition indicates causation. Contrary to Ituah’s suggestion that the demolition occurred shortly after the New York bankruptcy case’s dismissal because the bankruptcy stayed the demolition, there is an exception to bankruptcy stays for litigation to enforce police powers – as was the case here.”
Pappert continued that there was not any evidence in the record to support Ituah’s claim that the amount of the August 2018 proceeds check Thurmond sent to the bankruptcy trustee was too low or contrary to a court order in 2015, nor, Pappert stated, was there any evidentiary support for the claims that Thurmond pressed the bankruptcy court to dismiss Ituah’s Pennsylvania bankruptcy case, and presented false information about the value of Ituah’s property.
“The record shows it was the bankruptcy trustee, not Thurmond, who moved to dismiss the bankruptcy case. Thurmond did reference the proof of claim for Ituah’s tax debt and the South 53rd Street’s valuation when objecting, on behalf of the City, to Ituah’s proposed bankruptcy plan. But it was attorney Megan Harper – not Thurmond – who filed the proof of claim for tax debt. Ituah points to nothing in the record from which a jury could find that the proof of claim was wrong or that Thurmond was aware of any error,” Pappert said.
“Ituah contended that Thurmond was aware of the City’s payment records, but there is no evidence that Thurmond had any involvement in crediting payments to Ituah’s accounts or communication with those who do. There is also no evidence that Thurmond had any role in calculating or sending Ituah’s utility and tax bills, or communication about the bill amounts with those who do. In discovery, Ituah explained that when he alleged Thurmond ‘engineered inaccurate bills collection’ he meant that Thurmond filed the ‘statement of claims presented to the bankruptcy court’ based on allegedly inaccurate bills prepared by others. There is no evidence of Thurmond doing anything of the sort.”
Pappert went on to say that if city officials “determine a building is imminently dangerous, they are then required to notify the property owner in writing with a description of the imminently dangerous condition, specifying the required repair to make, or requiring the imminently dangerous structure to be demolished within a stipulated time.”
“Ituah argued that the Tabor Property was not imminently dangerous, pointing to the fact that the structure did not collapse on its own during the two weeks between the notice of violation and the demolition, and that it was ‘repairable. But the evidence shows, and Ituah does not dispute, that the structure could not remain safely in its then-condition. Multiple inspectors determined the structure was imminently dangerous. The Philadelphia County Court of Common Pleas considered all evidence offered by the City and Ituah, and found that the structure was imminently dangerous and that demolition was appropriate. Ituah does not provide any evidence substantiating the core elements of a Takings Claim. The City, through Philbin and Carroll, acted to protect public safety pursuant to the City’s police power, not eminent domain,” Pappert said.
UPDATE
Ituah filed a pro se notice of appeal to the Third Circuit on Dec. 4, which took issue with Pappert’s decision and accused him of having bias in the matter.
“Notice is hereby given that the United States of America, plaintiff Abraham Ituah in the above‐captioned case, hereby appeals to the United States Court of Appeals for the Third Circuit, from the order of this Court granting defendants summary judgment entered on Nov. 6, 2023. The order appealed from is requiring the return of demolished property within 15 days as a retaliation and fraudulent sales of property within 5 months without legitimate due process, including the following language: ‘I hereby certify that the appeal is not taken for purpose of delay and that the evidence is a substantial proof of a fact material in the proceeding,” the notice stated.
“The only presiding judge in all cases was bias for dismissing my fraud action with prejudice and refusing to grant me appointed counsel to address the constitutional violation, as well as denying my request for a jury trial as I marked on the original complaints.”
U.S. Court of Appeals for the Third Circuit case 23-3140
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