United States District Court, D. Delaware
Harmon, Hartsville, South Carolina. Pro Se Plaintiff.
J. Connors, Esquire, and Artemio C. Aranilla, II, Esquire,
Marshall, Dennehey, Warner, Coleman & Goggin, Wilmington,
Delaware. Counsel for Defendants.
ANDREWS, U.S. DISTRICT JUDGE.
Sandra Harmon appears pro se. She commenced this
lawsuit to protect her private property and preserve her
right to restore her home located in Rehoboth Beach,
Delaware. (D.I. 1; D.I. 1-1 at p.8). Plaintiff
alleges violations of her rights under the First and
Fourteenth Amendments to peaceful enjoyment of the property,
and unlawful tactics by Sussex County government officials.
Plaintiff alleges jurisdiction by reason of diversity
pursuant to 28 U.S.C. § 1332. (D.I. 1 at 1). Before the
Court are the parties' cross-motions for summary
judgment. (D.I. 59, 61). Also before the Court is Plaintiffs
motion to strike Defendants' reply brief. (D.I. 73). The
matters have been fully briefed.
commenced this action in the United States District Court for
the District of South Carolina. All issues relate to real
property located at 37533 Oyster House Road in Rehoboth
Beach, Delaware, that is owned by the "Leroy William
Harmon Heirs," who include Plaintiff and Lefton Harmon.
(D.I. 1 at 2-3). The matter was transferred to this Court on
December 19, 2017. (D.I. 13, D.I. 14).
April 7, 2017, Sussex County Constable Ryan W. Stuart
prepared a field inspection report and found the property
non-compliant with the Sussex County Housing Code as
"unfit for human occupancy" with an "unsafe
structure" following an inspection that found the
property had been damaged due to fire. (D.I. 60-1 at 2-7). A
demolition order issued that provided the owners were to
"raze" the structure by June 24, 2017.
(Id. at 9). If they failed to comply with the
demolition order, the Sussex County Code Office would have
the structure razed and removed, the costs of razing and
removal would be charged against the real estate upon which
the structure was located, and a lien would be placed upon
the real estate as provided in the Sussex County Code.
(Id.). A copy of the demolition order was sent by
certified mail to the "Leroy William Harmon Heirs and
Sandra Harmon" at the address of record in New Castle,
Delaware. (D.I. 60-1 at 11). Lefton Harmon signed the return
receipt. (Id.). Plaintiff alleges that she became
aware of the demolition order on June 23, 2017 when Lefton
Harmon read the contents of the notice to her. (D.I. 1 at 2,
filed a case in the Superior Court of the State of Delaware
in and for Sussex County against Sussex County and Mike
Castello, Harmon v. Sussex County, Civ. A. No.
S17C-06-035 ESB (Del. Super.) and sought an emergency
injunction against the demolition order for the Oyster House
Road property. The parties entered into a dismissal agreement
that no action would be taken to demolish the property until
disposition of the matter by the Sussex County Board of
Appeals. (D.I. 55 at 10). The stipulation of dismissal
states, "In the event [that] Sandra Harmon or any other
owner of the subject property fails to file an appeal with
the Sussex County Board of Appeals pursuant to Article III,
Section 71-31(D) on or before August 15, 2017, Sussex County
may proceed to enforce the Demolition Order."
meantime, on July 25, 2017, the owners of the property
received a Sussex County violation from Defendant Kelly R.
Passwater following an inspection that found a shed on the
property was illegally located and illegally being used as a
dwelling. (D.I. 1- 1 at 8-9). The owners were given an August
18, 2017 violation correction date. (Id. at 9).
about August 31, 2017, Plaintiff was notified via email by
Defendant Michael Costello, Government Affairs Manager,
Sussex County Administrative Building, that the demolition
appeal hearing was set for September 20, 2017, and that there
was a $600 application fee for the hearing. (D.I. 1-1 at
1-2). On August 31, 2017, Plaintiff sought a fee waiver due
to financial hardship. (Id. at 3). Costello's
email, dated September6, 2017, advised Plaintiff that the
Board of Appeals had no process to waive the fee and should
it not be received by September 13, 2017, the September 20,
2017 hearing would be canceled. (Id. at 2).
September 9, 2017, Plaintiff emailed Costello and other
Sussex County employees stating that she had advised Costello
on August 31, 2017 that she could not attend the September
20, 2017 hearing due to a previously scheduled doctor's
appointment, and she asked Costello to reschedule the hearing
and send her a waiver form as an indigent citizen.
(Id. at 4). Plaintiff warned that she would seek an
emergency injunction in federal court if the hearing
proceeded without her. (Id.).
received an email response the next day from attorney Jason
Adkins, who told her:
[T]he scheduling is set based upon the next available date
when the board of appeals members are available. This is the
same procedure for any person requesting an appeal.... As was
previously communicated, you are permitted to have someone
appear on your behalf and represent your interests, even if
you are unable to attend personally. The County does not
have, or offer, indigent fee waivers. Any person who requests
a similar appeal is required to pay the same fee being
charged to you.
(Id. at 4). Plaintiff did not pay the required fee
and was notified on September 14, 2017 that the hearing was
canceled due to her failure to pay the fee and that Sussex
County would resume its efforts to bring the property into
compliance with the Sussex County Code in accordance with the
demolition order that was originally served in April 2017.
(Id. at 5). The Complaint alleges that demolition
began on September 14, 2017. (D.I. 1 at 4).
Court takes judicial notice that on January 12, 2018, a
little over three weeks after this case was transferred here,
the Department of Finance of Sussex County filed a monitions
suit against Plaintiff and the other owners for delinquent
sewer and water bills and the demolition lien. See
Department of Finance of Sussex County v. Harmon Heirs,
Civ. A. No. S18T-01-002 (Del. Super.) at BL-1. Monition was
entered on January 18, 2018, and posted on the property on
January 23, 2018. Id. at BL-6.
for Development, Inc. offered to purchase the property. (D.I.
62-6 at 1). Plaintiff rejected the offer on May 27, 2018.
(Id. at 5). On May 30, 2018, a notice of the
Sheriffs sale was posted at the physical entrance of the
property and, on May 31, 2018, Plaintiff and the other
property owners were notified by certified mail of a Sheriffs
sale of the real estate to take place on June 19, 2018, at
9:30 a.m. See Civ. A. No. S18T-01-002 at BL-16,
BL-17, BL-18. According to Plaintiff in her verified motion
for injunctive relief dated June 5, 2018, she made multiple
payments on the water and sewer bill and indicated it would
be paid in full the month of June 2018. (D.I. 27 at
¶¶ 10-14). In addition, she stated that Sussex
County never attempted to arrange for payments on the
demolition and she "just began to pay monthly on the
outstanding cost of demolition until the balance is paid in
full." (Id. at ¶¶ 15-17). Other than
the County sending Plaintiff "a bill of cost, nothing
more was discussed about the demolition cost."
(Id. at ¶16).
8, 2018, Harmon filed a motion to dismiss and motion for
injunctive relief in the monition action, alleging violations
of her constitutional rights. See Civ. A. No.
S18T-01-002 at BL-10. On June 18, 2018, the Superior Court
denied the motion and ordered that the sale could proceed as
scheduled on June 19, 2018. Id. at BL-28. A notice
of lis pendens was filed on June 19, 2018 and on June 21,
2018, Harmon filed a motion to invalidate and to dismiss.
Id. at BL-30. On June 19, 2018, the property was
sold for $113, 500 to Wayne D. Hudson, Robert J. Downes, and
David R. Downes, the highest bidder and, in turn, Harmon
filed an objection to the sale followed by an amended notice
of objection. Id. at BL-35, BL-36, BL-44,
BL-60. On August 9, 2018, Harmon filed a motion
to dismiss. Id. at BL-51.
November 7, 2018, the Superior Court stayed the matter while
awaiting resolution of the related federal civil cases
Plaintiff had filed, Civ. No. 18-1021-RGA and the instant
case Civ. No. 17-1817-RGA. Id. at BL-51. Harmon then
filed a petition for a writ of mandamus in the Delaware
Supreme Court to compel the Superior Court judge to dismiss
the monition action. Id. at BL-53, BL-56. The
Delaware Supreme Court dismissed her petition on December 3,
2018. In re: Harmon, 2018 WL 6332269 (Del. Dec. 3,
telephone conference in the monition action was held on
December 19, 2018 to discuss the wording in the Superior
Court's June 18, 2018 order that denied Harmon's
motion to dismiss and/or to transfer the monition action to
federal court. (D.I. 62-2 at 1-2; D.I. 70-1 at 20-21; Civ. A.
No. S18T-01-002 at BL-58). The order stated that the
"monition sale sought by [Department of Finance of
Sussex County] is premised upon the Defendants'
(i.e., Harmon) alleged failure to pay sewer and
water fees." (D.I. 62-2 at 1). Because Plaintiff had
paid the water and sewer bill in full at the time the order
was entered, she questioned why her motion was not granted
and why the sale was allowed to proceed. (D.I. 70-1 at 20).
During the telephone hearing, the Court stated that although
the order states that the monition sale is premised upon the
alleged failure to pay the water and sewer bill, that was not
the intent of the order and the Court did not think that when
the order was signed that the matter was limited solely to
water and sewer. (Id.). The Court explained the
order included the demolition assessment because the
demolition assessment was "all part of the monition, and
it was all part of the sales execution writ that
proceeded." (Id.). The Court went on to explain
that the wording of the order "did not in any way affect
the ability of the County to seek to collect the demolition
costs." (Id.). On June 19, 2019, an
"affidavit of non-redemption" was filed in the
monition case. It advised that: (1) the property had been
sold; (2) Plaintiff and the other heirs had not redeemed the
property by paying all taxes, interest, and costs within 60
days of the confirmation of the sale, as was permitted by
Delaware law; (3) there had been no objections to the sale;
and (4) "the sale was automatically confirmed as a
matter of course." See Civ. A. No. S18T-01-002
claims: (1) Sussex County government officials intentionally
violated her First Amendment right to the peaceful enjoyment
of her private property without government interference; (2)
Sussex County government officials engaged in unlawful
tactics to displace African American families from their
beach property via suspicious house fires during the
owner's absence from his or her home; (3) Defendant
intentionally cut off the water supply to Plaintiffs property
and made it impossible for Plaintiff to stay in a shed on the
property when she came for short vacations; and (4)
Defendants sought to remove a shed on the property that had
been in the same location for over ten years in an attempt to
prevent Plaintiff from using the property. (D.I. 1 at 2).
move for summary judgment on the grounds that: (1) Plaintiff
has failed to adduce any evidence to support her claims; (2)
the Sussex County Code addresses the issue of who is
responsible for paying the demolition lien amount; (3)
Plaintiff has failed to cite to supporting authority or
adduce evidence to support her request for an order to
reconstruct the home on the property; and (4) the challenge
to the required payment of an appellate fee to the Sussex
County Board of Appeals fails. Plaintiff moves for summary
judgment on the grounds that: (1) she has provided proof that
Defendants violated their own policies and procedures in
failing to afford her a hearing on the demolition of her
property; and (2) she has provided evidence that Defendants
intentionally denied her the right to due process and equal
protection of Sussex County policies.
court shall grant summary judgment if the movant shows that
there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law."
Fed.R.Civ.P. 56(a). An assertion that a fact cannot be-or,
alternatively, is-genuinely disputed must be supported either
by "citing to particular parts of materials in the
record, including depositions, documents, electronically
stored information, affidavits or declarations, stipulations
(including those made for purposes of the motion only),
admissions, interrogatory answers, or other materials,"
or by "showing that the materials cited do not establish
the absence or presence of a genuine dispute, or that an
adverse party cannot produce admissible evidence to support
the fact." Fed.R.Civ.P. 56(c)(1)(A) & (B). When
determining whether a genuine issue of material fact exists,
the court must view the evidence in the light most favorable
to the nonmoving party and draw all reasonable inferences in
that party's favor. Scott v. Harris, 550 U.S.
372, 380 ...