Rose v. Pawlowski, CIVIL ACTION NO. 19-CV-3853

JIMI ROSE, Plaintiff, v. ED PAWLOWSKI, et al., Defendants.

CIVIL ACTION NO. 19-CV-3853

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA

NOVEMBER 21, 2019

MEMORANDUM

SCHMEHL, J. /s/ JLS

Plaintiff Jimi Rose, a prolific litigator in this Court, brought a Complaint on August 23, 2019, against: (1) Ed Pawlowski, the former Mayor of Allentown; (2) Ray O'Connell, the Acting Mayor of Allentown; (3) the City of Allentown; and (4) unknown John Doe and Jane Roe, Inc. Defendants. Rose, who is black, alleges that he was the victim of a decades-long scheme that caused him to pay unnecessary trash collection fees on property he used to own whereas white property owners did not have to pay those fees. The Court also understands Rose to be alleging that, as a black property owner, he was illegally deprived of his property by being pressured to sell to politically-connected individuals.

Rose seeks to proceed in forma pauperis. He also filed a "Motion and Request for Court Ruling" asking that the Court rule on his claims.¹ (ECF No. 5.) For the following reasons, the Court will grant Rose leave to proceed in forma pauperis and dismiss the majority of Rose's claims as time-barred pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii). Although Rose has not stated a timely claim that is plausible, in an abundance of caution, he will be given leave to amend onlyas to certain claims, as discussed below. Rose's pending Motion will be denied as moot in light of this Memorandum and accompanying Order, which addresses his pending in forma pauperis Motion and Complaint.

I. FACTS²

A. Rose's Allegations in the Instant Case

Rose owned property located at 2327 Hanover Avenue in Allentown, Pennsylvania, from 1994 until he sold that property after it was destroyed by a fire. Rose alleges that he used to operate a hotel on the premises. According to Rose, during his tenure as owner of the property, he was informed by the "Defendants' agents and employees" that he "could not operate his business unless he had a 'Dumpster a Recycling Container and a Grease Disposal Container." (Compl. ECF No. 2 at 2, ¶ 13.)³ Rose contends that he "was paying Defendant City for trash collection despite never having received trash collection services from the Defendant City." (Id.)

Rose alleges that he "brought this to the attention of the Defendants" and was told that he was required to pay for trash collection services because there were "two 'apartments' on his business property." (Id. at 2, ¶ 14.) Rose objected but was informed that he was required to pay the fees if he wanted to keep his business open. (Id. at 2, ¶ 15.) Rose also alleges that other hotels or motels were not required to pay the same trash collection fees and that he was forced to pay them because he is African-American. (Id. at 3, ¶ 17.) According to "information andbelief" Rose alleges that "White Persons similarly situated did not have to pay" the fees to which Rose was subjected. (Id. at 4, ¶ 32.)

Rose avers that "it was not until after [his] establishment was damaged by fire that [he], once again, challenged the Defendant City about the overwhelming amount of taxes [he] had to pay for a service he never received." (Id. at 3, ¶ 21.) At this time, Rose allegedly became aware that Defendants Doe and Roe, Inc., who were friends of Pawlowski, wanted to purchase his property "for pennies on the dollar." (Id. at 3, ¶ 22.) The allegations about the transfer of ownership of Rose's property, including when it was sold and to whom, are unclear from the Complaint. Although Rose identifies an unknown John Doe Defendant and an unknown company as those who purchased his property, (id. at 1, ¶¶ 5-6 & 4, ¶¶ 30-31), he later alleges that his property was purchased by an individual named Abe Atiyeh, who is not identified as a Defendant. (Id. at 6, ¶¶ 46-48.)

Rose's allegations here are, again, somewhat confusing and conflicting. He alleges that even after his property was burned down, it was valued at $680,000, but his "agent" Timothy Rose, only received "$50,000 or less [from] Defendants and/or Abe Atiyeh." (Id. at 5, ¶ 43.) But Rose also alleges that when he asked the City for an audit of the taxes owed on his property "the Defendant City sold the property to Abe Atiyeh without delay," which seems to conflict with Rose's allegation that his agent sold the property. (Id. at 6, ¶ 48.) Rose also laments that the City of Allentown did not offer him money to "resurrect . . . or tear down his property" even though a "local White Businessman" received $200,000 to tear down a property that was set on fire by homeless individuals. (Id. at 5, ¶ 38.)

Based on the above allegations, Rose brings claims pursuant to 42 U.S.C. §§ 1981, 1982, 1983, 1985 & 1986,⁴ in connection with: (1) the allegedly racially-discriminatory imposition of fees and/or taxes for trash collection that he did not receive; and (2) the deprivation of his property "for pennies on the dollar" after it had burned down. His claims are mostly predicated on a pay to play scheme for which Pawlowski was later convicted on federal charges as discussed further below. According to Rose, "[i]t was not until the trial of the Defendant Ed Pawlowki [on those federal corruption charges], that [he] discovered, through the FBI's investigation, how the business of Racketeering and 'Pay to Play' was implemented in the Defendant City through, among other ways, collecting illegal taxes and fees for services never rendered." (Id. at 3, ¶ 27.) He claims that "[w]ere it not for the FBI and the Morning Call Newspaper reporting to the Public how the Scam was being Conducted, [he], to this date, would still not realize how he was a victim of the Defendants." (Id. at 5, ¶ 36.) Rose also alleges that O'Connell, Allentown's Acting Mayor, has "taken a page directly out of Defendant Pawlowski's playbook as the corruption and illegal discrimination continues unabated." (Id. at 6-7, ¶ 51.)

Perhaps anticipating that his claims may be time barred, Rose also attached to his Complaint a "Memorandum of Law and Argument," in which he argues that the statute of limitations should be tolled to allow him to move forward on his claims, which concern conduct going back approximately twenty years. (Id. at 8.) The crux of Rose's argument is essentially that his claims did not accrue until March of 2018, when Pawlowski's criminal trial took place and he allegedly learned of the former Mayor's wrongdoings. (Id.); see also United States v. Pawlowski, E.D. Pa. Crim. A. No. 17-390-1. Rose also alleges that the "Defendants continue toviolate the Civil Rights and Liberties of Persons of Color by maintaining an open Practice of Racial Discrimination." (Compl. ECF No. 2 at 11.) Rose seeks compensatory damages in excess of $3 million and punitive damages in excess of $3 million.

B. The Criminal Case Against Pawlowski

As background, "[o]n March 1, 2018, after a six-week trial, a jury convicted . . . Edwin Pawlowski, the former mayor of the City of Allentown, of 47 counts of corruption-related offenses arising out of his orchestration of a pay-to-play scheme while in public office to fund his campaigns for Governor of Pennsylvania and the United States Senate." United States v. Pawlowski, 351 F. Supp. 3d 840, 846 (E.D. Pa. 2018). "[T]he scheme involved various sub-schemes whereby Pawlowski, directly and through his operatives, agreed to steer City contracts or provide other favorable official action to companies, law firms, and individuals in exchange for campaign contributions and other items of value." Id. "Following a six-week trial, Pawlowski was convicted of 47 of the 54 counts against him." Id. at 847.

The indictment against Pawlowski issued on July 25, 2017, and was unsealed on July 26, 2017. See United States v. Pawlowski, E.D. Pa. Crim. A. No. 17-390-1 (ECF No. 1); see also United States v. Pawlowski, No. 17-390-1, 2017 WL 11350965, at *1 n.1 (E.D. Pa. Dec. 5, 2017) ("On July 25, 2017, Edwin Pawlowski, Scott Allinson, and James Hickey were charged in a 55-count Indictment with corruption-related offenses arising from an alleged pay-to-play scheme in which Pawlowski accepted over $150,000 in campaign contributions in exchange for the use of his official position."). In the days after, news of Pawlowski's indictment was widely publicized. Notably, the Morning Call, Allentown's local newspaper, published an article on July 27, 2017 reporting on the scheme described in the indictment. See Emily Opilo, et al., Allentown Mayor Ed Pawlowski Put City Hall Up For Sale to Highest Bidders, Prosecutor Says, The Morning Call(July 27, 2017), https://www.mcall.com/news/breaking/mc-nws-allentown-mayor-ed-pawlowski-indictment-unsealed-fbi-20170725-story.html.

C. Rose's Prior Cases and Loss of his Property

As noted above, Rose is a prolific filer in this Court. Many of his prior lawsuits raised race-discrimination claims stemming from Rose's operation of a business on the property he owned on Hanover Avenue in Allentown.⁵ Rose has also been noted for his "history of frivolous litigation." Rose v. Hoffman Ins. Consultants, LLC, Civ. A. No. 16-02225, 2018 WL 3454930, at *5 n.5 (E.D. Pa. July 18, 2018), aff'd, No. 18-2736, 2019 WL 451277 (3d Cir. Jan. 30, 2019).

Relevant here, in 2010, Rose sued then-Mayor Pawlowski and other City of Allentown officials, alleging that they targeted him and other black property owners through racially-discriminatory police practices, while white property owners were treated more favorably. See Rose v. Pawlowski, E.D. Pa. Civ. A. No. 10-5274 (ECF No. 7 at 5) (alleging that Pawlowski "spearheaded the racial attacks that would ultimately close down Black and Hispanicbusinesses"). The complaint, which is dated September 30, 2010 ("the 2010 complaint") describes the same scheme alleged in Rose's instant Complaint.⁶

In his 2010 complaint, Rose specifically alleged he "believe[d] that the Mayor is working for some of his campaign contributors to put pressure on the plaintiff so that ...