Rose v. Pawlowski

1

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

CIVIL No. 5:21-cv-04946-JMG

United States District Court, E.D. Pennsylvania

February 27, 2023

MEMORANDUM OPINION

JOHN M. GALLAGHER, United States District Court Judge

I. OVERVIEW

Plaintiffs community leaders and activists, raise civil rights allegations against the City of Allentown and numerous city officials. The Court liberally construes pro-se Plaintiffs' Complaint in this action to bring two 42 U.S.C. § 1983 claims and a claim under the Americans With Disabilities Act of 1990 (“ADA”) against Defendants, municipal government entities (“Government Entity Defendants”) and their current/former employees (“Individual Defendants”).

Because Plaintiffs' claims against the Individual Defendants are brought against them in their official capacity, these claims are dismissed with prejudice as they are duplicative of Plaintiffs' claims against the Government Entity Defendants.

Because Plaintiffs' remaining claims against Government Entity Defendants fail to state a claim upon which relief may be granted, these claims are dismissed without prejudice. Because repleading may cure these decencies, Plaintiffs are granted leave to file an amended complaint against the Government Entity Defendants within forty-five (45) days.

II. BACKGROUND

a. PLAINTIFFS' COMPLAINT

The Plaintiffs in this action consist of Jimi Rose, Marcus A. Henry, Jr., Latoya McPherson, and Jalil Rasheed (“Plaintiffs”). On November 15, 2021 Plaintiffs filed a Complaint (the “Complaint” or “Plaintiffs' Complaint”) (ECF No. 5) against Defendants City of Allentown; former Mayor of Allentown Ray O'Connell; former Mayor of Allentown Ed Pawlowski; City of Allentown Treasury and Accounting Manager Bina Patel; former President of Allentown City Council Julio A. Guridy; Vice President of Allentown City Council Cynthia Mota; Allentown City Councilperson Candida Affa; Allentown City Councilperson Cecilia Ce-Ce Gerlach; Allentown City Councilperson Daryl L. Hendricks; former Allentown City Councilperson Joshua Siegel; Allentown City Councilperson Ed Zucal; the Allentown Bureau of Planning and Zoning; former Director of Planning and Zoning for the City of Allentown Irene Woodward; Allentown Parks and Recreation; and former Executive Director of Allentown Parks and Recreation Karen El-Chaar (collectively, “Defendants”).

Although the first section of the Complaint is untitled, ¶¶ 1-114 of the Complaint allege that Defendants violated Plaintiffs civil rights pursuant to 42 U.S.C. § 1983 arising out of Defendants' failure to rebuild and “make fit for human habitation” Valania Park, which “is a neighborhood park located off Union Street between William Street and S. 6th Street” in Allentown, Pennsylvania. See Ex. B to Compl. at pg. 2.

Also within the first section of the Complaint, Plaintiffs' allege that “Valania Park currently violates the Disabilities Act for the State of Pennsylvania.” Compl. at ¶ 24.

The second section of the Complaint consists of ¶¶ 115-169 and is contained under the heading “Count II” and appears to allege civil rights violations by Defendants arising out of policies and practices that invest in the development of predominately white communities, but not in the development of predominately minority communities.

b. Section One: Plaintiffs' § 1983 Claim Regarding Valania Park

Plaintiffs bring claims pursuant to 42 U.S.C. § 1983 based on the physical condition of Valania Park in Allentown, Pennsylvania. Id. at ¶ 1, 3.

The first section of Plaintiffs' Complaint alleges generally that Defendants, through a practice and policy of indifference to the civil rights and liberties of the named Plaintiffs, as well as the Black and Hispanic communities, have ignored the deteriorating condition of Valania Park in Allentown, Pennsylvania, instead choosing to invest more time and resources in the upkeep of parks located in predominately white communities. See generally Compl. at ¶ 1 - 114. The Complaint states that all named Plaintiffs are persons of color. Id. at ¶ 4.

The Complaint alleges that Plaintiff Jalil Rasheed “frequents Valania Park, and the current conditions have caused him to suffer because, there is no place for him to sit down, and he is a Black American with a Disability.” Id. at ¶ 5. The Complaint further alleges that Plaintiff Marcus Henry “brings his three children to the park where the children stumble and fall because of the cracks in the sidewalk cement.” Id. at ¶ 12. The Complaint does not aver whether Plaintiffs Jimi Rose and/or Latoya McPherson visit, use, or are in any way personally impacted by Valania Park.

The Complaint generally describes Valania Park's condition as “haggard” and “not fit for human habitation.” Id. at ¶¶ 27, 114. The Complaint also alleges Valania Park does not have electricity, a concession stand, or a recreation room. Id. at ¶¶ 13, 22. The Complaint alleges the benches at Valania Park “are so small that” it is difficult for children and citizens with disabilities to get up from them after sitting down. Id. at ¶ 23. The Complaint alleges Defendants have been aware of Valania Park's poor condition, and that scheduled renovations to Valania Park have been continuously delayed. Id. at ¶¶ 14, 16, 18, 37, 41.

This poor condition, the Complaint avers, is in contrast to parks located in primarily white neighborhoods, which Plaintiffs aver are in better condition. Id. at ¶¶ 27, 44. Indeed, the Complaint avers that “in the White Parks, there is a toilet,” but there is no toilet in Valania Park. Id. at 13, The Complaint appears to allege that this contrast in the quality of parks “frequented primarily by White Persons” against that of Valania Park, which is mostly frequented by “Black People and Hispanic People,” is due to Defendants' “Practice and Policy that is indifferent to the Civil Rights and Liberties of the named Plaintiffs as well as the Black and Hispanic Community at large.” Id. at ¶¶ 8, 1144, 51, 108. The Complaint does not identify a particular program, policy, or practice, but alleges “the City of Allentown and its Officials including the Minority Officials who sit on the City Council Board have acted in concert, at all times relevant, with the White Oppressors who have only one goal in mind and that is to degrade and dehumanize Black and Hispanic men, women, and children, and senior citizens with Disabilities.” Id. at ¶ 32.

c. Section One: Plaintiffs' Americans with Disabilities Act (“ADA”) Claim Regarding Valania Park

Although not contained within a separate section, unlike Plaintiffs' subsequent claim concerning community and housing development in general, it appears Plaintiffs attempt to state a claim against Defendants under the Americans With Disabilities Act of 1990 (“ADA”). Because Plaintiffs are pro se, the Court construes Plaintiffs' Complaint liberally and will consider whether Plaintiffs successfully state a claim under the ADA. Higgs v. AG of the United States, 655 F.3d 333, 339 (3d Cir. 2011) (“when presented with a pro se litigant, we ‘have a special obligation to construe his complaint liberally.'”) (quoting United States v. Miller, 197 F.3d 644, 648 (3d Cir. 1999)).

Plaintiffs' Complaint alleges “Valania Park currently violates the Disabilities Act for the State of Pennsylvania.” Compl. at ¶ 24. It appears Plaintiffs intend to assert a violation of the ADA. See Plaintiffs' Response to First Motion to Dismiss at ¶ 16 (ECF No. 46) (“The Americans with Disabilities Act regulations require that government organizations provide seating that individuals with disabilities can use.”). The Complaint alleges “[t]here are no provisions for handicapped senior citizens or handicapped people in general. Children with handicaps are forced to travel at their own risk while City Officials sit back in the City Hall and laugh.” Compl. at ¶ 24.

d. Section Two: Plaintiffs' § 1983 Claim Regarding Defendants' Practice and Policy to Invest in the Development of Predominately White Communities Over Predominately Minority Communities

A second section of the Complaint, titled “Count II,” alleges that Defendants “have a practice and policy concerning unfair housing with respect to Minority People.” See Compl. at ¶ 115. This section of the Complaint brings numerous allegations, including allegations “that the city of Allentown” awards “grant money” and “redevelopment money” “primarily to White people.” Id. at ¶ 122.

The Complaint does not allege any injury on behalf of the particular named Plaintiffs, but rather broadly alleges Defendants “do not offer an Equal Housing Opportunity to the poor and oppressed people who are majority Black and Hispanic.” Id. at ¶ 127. The Complaint alleges that “[i]n the majority minority section of the City of Allentown, there are no City Council Meetings being held” and “there are few, if any polling places.” Id. at ¶ 129-130. The Complaint further alleges Defendants “have never redeveloped the minority sections of Allentown” and “The City of Allentown has a practice and policy that if you are White, you get richer; if you are Black or Hispanic, you stay poor. If you come from a foreign country, the city makes sure you have plenty of money to open up stores in a Minority Area, and these foreign people are stealing money from poor and oppressed Black and Hispanic people.” Id. at ¶ 132-133. The Complaint further alleges, “Allentown City Inspectors turn a blind eye toward slum lords by ignoring roach-infested apartments and houses, bed-bug infested apartments and houses, rat-infested apartments and houses, houses and apartments that are infested with mold, and it is believed that the City of Allentown acts in concert with the slum lords.” Id. at ¶ 139.

Plaintiffs' Complaint also alleges that...