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Perdue v. City of Wilmington

United States District Court, D. Delaware

October 8, 2014

DAVID PERDUE, Plaintiff,


SUE L. ROBINSON, District Judge.

1. Introduction. Plaintiff David Perdue ("plaintiff') proceeds prose and has been granted in forma pauperis status. Upon screening, the original complaint, filed January 15, 2014, was dismissed and plaintiff was given leave to amend. Plaintiff filed an amended complaint, but it did not contain a prayer for relief and it was also dismissed. Plaintiff was again given leave to amend. (D.I. 11) Plaintiff recently filed a prayer for relief. (D.I. 12) The court considers the amended complaint (D.I. 9) and the amended complaint that contains the prayer for relief (D.I. 12), together, as the operative pleading.

2. Plaintiff alleges violations of: (1) the First, Fourth, and Fourteenth Amendments to the United States Constitution; (2) the Fair Housing Act ("FHA"), 42 U.S.C. § 3601, et seq., and specifically §§ 3604, 3604(d), (f)(1), (f)(2), and (f)(3)(B), and its regulations 24 C.F.R. §§ 100.60(b)(4) and (b)(5), § 100.65, §§ 100.70(a) through (c), and (d)(5), and §§ 100.500(a) through (c); and (3) the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101, et seq., and its regulations 28 C.F.R. § 35, [1] et seq., and specifically 28 C.F.R. § 35.100, [2] and 28 C.F.R. §§ 35.134(a) and (b), all in relation to condemnation of properties where he resided, as well as retaliation. (D. I. at 3-4; D. I. 12)

3. Standard of Review. A federal court may properly dismiss an action sua sponte under the screening provisions of 28 U.S.C. § 1915(e)(2)(8) and§ 1915A(b) if "the action is frivolous or malicious, fails to state a claim upon which relief may be granted, or seeks monetary relief from a defendant who is immune from such relief." Ball v. Famiglio, 726 F.3d 448, 452 (3d Cir. 2013); see also 28 U.S.C. § 1915(e)(2). The court must accept all factual allegations in a complaint as true and take them in the light most favorable to a prose plaintiff. Phillips v. County of Allegheny, 515 F.3d 224, 229 (3d Cir. 2008); Erickson v. Pardus, 551 U.S. 89, 93 (2007). Because plaintiff proceeds pro se, his pleading is liberally construed and his complaint, "however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers." Erickson v. Pardus, 551 U.S. at 94 (citations omitted).

4. An action is frivolous if it "lacks an arguable basis either in law or in fact." Neitzke v. Williams, 490 U.S. 319, 325 (1989). Under 28 U.S.C. § 1915(e)(2)(B)(i), a court may dismiss a complaint as frivolous if it is "based on an indisputably meritless legal theory" or a "clearly baseless" or "fantastic or delusional" factual scenario.

Neitzke, 490 at 327-28; Wilson v. Rackmill, 878 F.2d 772, 774 (3d Cir. 1989); see, e.g., Deutsch v. United States, 67 F.3d 1080, 1091-92 (3d Cir. 1995).

5. The legal standard for dismissing a complaint for failure to state a claim pursuant to§ 1915(e)(2)(B)(ii) is identical to the legal standard used when ruling on Rule 12(b)(6) motions. Tourscher v. McCullough, 184 F.3d 236, 240 (3d Cir. 1999) (applying Fed.R.Civ.P. 12(b)(6) standard to dismissal for failure to state a claim under § 1915(e)(2)(B)). However, before dismissing a complaint or claims for failure to state a claim upon which relief may be granted pursuant to the screening provisions of 28 U.S.C. § 1915, the court must grant plaintiff leave to amend his complaint unless amendment would be inequitable or futile. See Grayson v. Mayview State Hosp., 293 F.3d 103, 114 (3d Cir. 2002).

6. A well-pleaded complaint must contain more than mere labels and conclusions. See Ashcroft v. Iqbal, 556 U.S. 662 (2009); Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007). The assumption of truth is inapplicable to legal conclusions or to "[t]hreadbare recitals of the elements of a cause of action supported by mere conclusory statements." Iqbal, 556 U.S. at 678. When determining whether dismissal is appropriate, the court must take three steps: "(1) identify[] the elements of the claim, (2) review[] the complaint to strike conclusory allegations, and then (3) look[] at the well-pleaded components of the complaint and evaluat[e] whether all of the elements identified in part one of the inquiry are sufficiently alleged." Malleus v. George, 641 F.3d 560, 563 (3d Cir. 2011). Elements are sufficiently alleged when the facts in the complaint "show" that the plaintiff is entitled to relief. Iqbal, 556 U.S. at 679 (quoting Fed.R.Civ.P. 8(a)(2)). Deciding whether a claim is plausible will be a "context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Id.

7. Allegations in the Amended Complaint. Plaintiff alleges that he is disabled by reason of depression, substance abuse, bi-polar disorder and PTSD. He is an associate of Disabled, Disadvantaged Delawareans also known as the 3D Foundation ("3D"), [3] and lived on properties owned by 3D located at 1028 West Third Street ("Third Street house") and 1313 Maryland Ave. ("Maryland Avenue house"), both in Wilmington, Delaware. Residents of the homes are not "blood-related" but consider themselves family. Residents share expenses of the houses, including mortgage payments, utility payments, taxes, and repairs. The home needs at least five to eight residents who pay an agreed amount to make the home safe, affordable, and supportive of recovery. (D.I. 9, ¶¶ 1-3)

8. In 2011, defendant Jessica Ramos-Valesquez ("Ramos"), a City of Wilmington[4] inspector/supervisor in the Department of Licenses and Inspections (L & I Department), inspected the Third Street house, issued violations and posted an "unfit" sign. Ramos did not return to re-inspect the premises to lift the unfit status despite repeated requests from 3D. When plaintiff moved into the Third Street house in 2012, the house remained in an "unfit" status. On an unnamed date, Ramos completed a compliance inspection, acknowledged compliance for the existing violations, verbally added new citations, and the Third Street house remained "unfit." Plaintiff alleges that Ramos and City of Wilmington refused all requests to re-inspect the Third Street house for compliance. The amended complaint alleges the foregoing violates 24 C.F.R. § 100.70(d)(5). ( Id. at ¶¶ 6-7)

9. In March 2013, an individual living in another 3D home sued the City of Wilmington for housing violations. Plaintiff alleges that two months later, on May 22, 2013, Ramos and defendant Anthony Goode (Goode"), the fire chief for the City of Wilmington, and other City employees retaliated when they "raided" the Third Street house. Goode telephoned Walker and indicated that he was shutting down the Third Street house. Plaintiff alleges that Goode, Ramos, and other City workers entered the Third Street house without a warrant or consent with the intent to evict the residents. Goode indicated that he had received complaints (i.e., missing smoke detectors and a blocked fire escape), [5] that the 3D houses would be shut down one-by-one, and that 3D could not house disabled people at the Third Street house. The residents were removed from the home and plywood was nailed over the front door. No one was allowed to replace the smoke detectors or unblock the fire escape. Goode subsequently proclaimed an emergency and ordered the electricity and gas shut off at the Third Street house. Plaintiff alleges that the actions taken on May 23, 2013 denied him housing because of his disability and his association with disabled persons, not because there was any imminent danger of fire. Plaintiff alleges that, since 2011, it has been the City of Wilmington's intent to stop mentally disabled or mentally ill persons from living in homes that are occupied by disabled persons and that it is clear through City employees' words and actions that the City of Wilmington does not want mentally ill or mentally disabled persons living in an arrangement like plaintiff's home. The amended complaint alleges the foregoing violates 42 U.S.C. §§ 3601, 3604(d), 3604(f)(1)(A), (B), and (C) and (f)(2), and 12101, 24 C.F.R. §§ 100.60 (4) and (5), 100.65, 100.70(a), (b), (c), and (d) (4) and (5), and the Fourth Amendment to the United States Constitution. ( Id. at ¶¶ 8-14)

10. After being evicted from the Third Street house, plaintiff was temporarily housed at the Maryland Avenue house. On May 27, 2013, Goode, firemen, and City inspectors came to the house and Goode informed plaintiff he was shutting down the house "for smoke detectors."[6] Goode was wearing a firearm. Plaintiff alleges that Goode demanded that he open the building for inspection, that the assistant fire chief (not a named defendant) coerced him to leave the Maryland Avenue house, and that he complied under duress. Inspector Anthony Rivera ("Rivera") wrote twenty-five code violations.[7] At that time, Goode told plaintiff and others that he was going to shut down all of the 30 houses and that he did not care if the residents were disabled or not. The amended complaint alleges the foregoing violates 28 C.F.R. § 35.134(a) and (b)[8] through retaliation, threats, intimidation, and coercion, as well as the Fourth Amendment to the United States Constitution. ( Id. at ¶ 15)

11. The amended complaint next alleges that Ramos, through the zoning director, demanded that either 3D or plaintiff obtain a business license to occupy plaintiffs home (the amended complaint does not identify the particular property but it appears it is the Third Street house). The type of City business license required restricts the number of occupants in a dwelling to a family defined as no more than four unrelated persons per dwelling.[9] In 2011, 3D made a request to Ramos for the City to relax the occupancy rule as a reasonable accommodation for 3D's disabled residents. Ramos told plaintiff that she would not inspect the house for compliance until a business license was obtained. Plaintiffs home was cited for overcrowding for violating the number of people allowed in a dwelling. Plaintiff alleges that no other owner of a family home is required to obtain a City business license and that the requirement unlawfully restricts housing choices because of a disability. The amended complaint alleges that the foregoing violates 42 U.S.C. §§ 3601, 3604(f)(3)(8), 3605 and 1201; 24 C.F.R. §§ 100.500(a), (b), and (c), 100.70(d)(4) and (5), and the Fourteenth Amendment to the United States Constitution. ( Id. at ¶ 16-18)

12. Plaintiff alleges that in 2013, the Wilmington City Council adopted a moratorium on all group homes located in the city for the mentally handicapped.[10] Plaintiff alleges that this "singles out living arrangements for the disabled for negative special treatment." The amended complaint alleges that the foregoing violates 42 U.S.C. §§ 3601, 12101, 24 C.F.R. § 100, et seq., [11] and 28 C.F.R. § 35, et seq., as well as plaintiff's rights ...

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