Bell v. Sullivan

AARON BELL v. WILLIAM SULLIVAN, et al.

CIVIL ACTION No. 17-912

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA

November 16, 2017

MEMORANDUM

Juan R. Sánchez, J.

Pro se Plaintiff Aaron Bell brings claims pursuant to 42 U.S.C. § 1983 and state law against the City of Philadelphia, Electricians, Inc.,¹ William Sullivan, and Michael Miller, Esq. arising out of the allegedly improper issuance of citations to Bell by the Philadelphia Department for Licenses and Inspections (L&I) for property violations. Defendants City of Philadelphia, Michael Miller, and William Sullivan have moved to dismiss the Second Amended Complaint for failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6). For the reasons set forth below, Defendants' Motion to Dismiss for Failure to State a Claim will be granted in part and denied in part.

BACKGROUND²

In November 2016, Bell sued Defendant Electricians, Inc. and Martin Morley in Philadelphia Municipal Court for breach of contract stemming from their electrical service workperformed on Bell's property—a duplex. Morley subsequently threatened Bell that he and his friends who worked for L&I would retaliate against Bell "by drowning [him] in bogus L&I citations if [he] did not withdraw his . . . lawsuit." 2d Am. Compl. ¶ 11 (internal quotation marks omitted). Bell refused to withdraw the lawsuit, and on January 10, 2017, Morley again threatened Bell that his friends at L&I had "surprises coming [Bell's] way." Id. ¶ 12.

On February 21, 2017, Bell learned from the municipal court judge in his lawsuit against Electricians, Inc. that, on January 17, 2017—one week after Morley had threatened Bell—Defendant Sullivan, an L&I code enforcer, had issued him multiple citations for illegally converting his property into a duplex. The previous owner of the duplex, however, had lawfully converted the property with the City's permission in 1953, and Bell has made no structural changes to the property since taking ownership. Between February 21 and 23, 2017, Bell repeatedly requested that Sullivan provide him copies of and withdraw the citations. Sullivan refused, requiring Bell to prove the property was not unlawfully converted into a duplex. The City's L&I office personnel also refused to provide Bell with copies of the citations.

On February 28, 2017, Bell commenced this action under 42 U.S.C. § 1983, alleging Sullivan (1) unlawfully retaliated against him in violation of the First Amendment; (2) violated his substantive and procedural due process rights; (3) violated his equal protection rights; and (4) Sullivan conspired with Electricians, Inc. to violate his constitutional rights.³ Bell also allegedthe City of Philadelphia has adopted and promulgated a pattern, practice, and policy pertaining to L&I's issuance of citations in violation of Monell v. Dep't of Soc. Servs. of N.Y., 436 U.S. 658, 691 (1978). Defendants filed a motion to dismiss, in which the City's attorney, Michael R. Miller, stated Bell "has [a] history of committing questionable conduct in litigation," Defs.' Memo. in Supp. of Mot. to Dismiss 3, adding in a footnote:

"In Bell v. O'Connor, No. 12-2625 (E.D. Pa.), two of the most respected civil rights attorneys in Philadelphia moved to withdraw as Plaintiff's counsel. Judge Dalzell granted their motion to withdraw after finding 'counsel's concerns . . . well-founded' that Plaintiff was attempting to use their services to commit 'criminal or fraudulent' conduct." See O'Connor, No. 12-2625, Docket No. 38 at page 1; see also Pa. R. Prof'l Conduct 1.16(b)(2).

Id. at 3 n.1. Bell then filed a First Amended Complaint, adding a defamation claim and a First Amendment retaliation claim against Miller based on the allegedly false statements in the motion, and adding a defamation claim against Sullivan for communicating the statements through Miller, his attorney. After Defendants filed a second motion to dismiss, Bell, without leave from this Court, amended his Complaint a second time, adding a second Monell claim against the City based on its alleged ratification or adoption of the alleged defamatory statements in the motion to dismiss. Defendants filed a third motion to dismiss for failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6)—the instant motion before the Court.

DISCUSSION

To survive a motion to dismiss for failure to state a claim pursuant to Rule 12(b)(6), "a complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim is facially plausible when the facts pleaded "allow[] the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. In evaluating a Rule 12(b)(6) motion, a court first must separate the legal andfactual elements of the plaintiff's claims. See Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d Cir. 2009). The court "must accept all of the complaint's well-pleaded facts as true, but may disregard any legal conclusions." Id. at 210-11. The court must then "determine whether the facts alleged in the complaint are sufficient to show that the plaintiff has a 'plausible claim for relief.'" Id. at 211 (quoting Iqbal, 556 U.S. at 679). Because Bell proceeds pro se, the Court construes his pleadings liberally and "will apply the applicable law, irrespective of whether [he] has mentioned it by name." Dluhos v. Strasberg, 321 F.3d 365, 369 (3d Cir. 2003).

A. First Amendment Retaliation

Bell contends Sullivan retaliated against him for instituting the state lawsuit against Electricians, Inc. and Morley by issuing him citations Sullivan knew to be baseless, in violation of the First Amendment. Defendants argue the retaliation claim fails because Bell failed to plead Sullivan knew about Bell's lawsuit when he issued the citations, or that Sullivan had any connection to Morley.

In order to plead a First Amendment retaliation claim, a plaintiff must allege "(1) constitutionally protected conduct, (2) retaliatory action sufficient to deter a person of ordinary firmness from exercising h[is] constitutional rights, and (3) a causal link between the constitutionally protected conduct and the retaliatory action." Leibert v. Phila. Hous. Auth., 474 F. App'x 76, 78-79 (3d Cir. 2012) (quoting Thomas v. Independence Twp., 463 F.3d 285, 296 (3d Cir. 2006)). As to the third prong, to establish the requisite causal connection a plaintiff must allege either "(1) an unusually suggestive temporal proximity between the protected activity and the allegedly retaliatory action, or (2) a pattern of antagonism coupled with timing to establish a causal link." Lauren W. ex. rel. Jean W. v. DeFlaminis, 480 F.3d 259, 267 (3d Cir. 2007); see Mirabella v. Villard, 853 F.3d 641, 651 (3d Cir. 2017) (describing the "causal link" as"but for" causation); Thomas v. Town of Hammonton, 351 F.3d 108, 114 (3d Cir. 2003) ("[T]he timing of the alleged retaliatory action must be unusually suggestive of retaliatory motive before a causal link will be inferred."). Further, to establish a causal connection, a plaintiff must allege the defendant was aware of the protected conduct. Hammond v. City of Wilkes Barre, 628 F. App'x 806, 807 (3d Cir. 2015).

Bell has sufficiently asserted a First Amendment retaliation claim against Sullivan. First, the filing of the lawsuit against Morley in state court constituted a constitutionally protected right. See BE & K Constr. Co. v. NLRB, 536 U.S. 516, 525 (2002) ("[T]he right of access to the courts is . . . but one aspect of the right of petition." (ellipses in original) (citation omitted)). Second, because Bell alleges Sullivan issued the citations against him at the request of Morley, and the citations had no legal basis and were withdrawn soon after Bell filed the instant federal lawsuit, the Court finds Bell has sufficiently alleged retaliatory action. See McKee v. Hart, 436 F.3d 165, 170 (3d Cir. 2006) (noting the effect of the alleged retaliatory conduct "need not be great in order to be actionable, but it must be more than de minimis" (citation and internal quotation marks omitted)); Lease v. Fishel, No. 07-0003, 2011 WL 381656, at *5 (M.D. Pa. Jan. 28, 2011) (holding plaintiff's allegations that township and building inspectors retaliated against him for his successful land development litigation against township through unauthorized zoning inspections and the filing of a petition against plaintiff with the state court for zoning violations were "substantial enough to be more than de minimis" and therefore survived defendants' motion to dismiss).

Finally, Bell has sufficiently plead a causal link between the filing of his lawsuit and the issuance of the citations. The passage of one week between Morley's threats and Sullivan's issuance of citations, as well as L&I's withdrawal of the citations one week after Bell filed theinstant federal lawsuit, is unusually suggestive of retaliatory motive. See Hammond, 628 F. App'x at 808 (noting "two weeks may be close enough temporally to be probative of causation"); cf. Thomas, 351 F.3d at 114 (finding the passage of three weeks between a complaint being filed and retaliatory conduct does not unusually suggest retaliatory motive); Shellenberger v. Summit Bancorp, Inc., 318 F.3d 183, 189 (3d Cir. 2003) (holding the ten day period between the protected activity and retaliatory conduct, combined with other evidence of wrongdoing, established causation); Lease, 2011 WL 381656, at *5 (finding that although the four to six months between the protected activity—successfully litigating a land development dispute against the township—and the alleged retaliatory action—the issuance of zoning violations—was not unusually suggestive by itself, coupled with allegations of a pattern of antagonism, plaintiff had established a causal link). Further, because Bell alleged Morley...