KYLE R. ENTY v. CITY OF PHILADELPHIA, et al.
CIVIL ACTION NO. 23-CV-4651
IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA
December 22, 2023
McHUGH, J.
Kyle R. Enty filed a pro se Complaint on November 22, 2023, asserting claims against the City of Philadelphia and two City employees, Tanisha Bey and Kristen Abney. Enty also seeks to proceed in forma pauperis. For the following reasons, the Court will grant Enty in forma pauperis status, and dismiss his Complaint on statutory screening.
I. FACTUAL ALLEGATIONS1
Mr. Enty‘s allegations are not entirely clear. He asserts the Court may exercise federal question jurisdiction over his claim based on “equal treatment under the law.” (Compl. at 3). He complains about actions undertaken by the Licenses and Inspections Department (“L&I“) of the City of Philadelphia. Enty states he is the landlord of a property at 6947 N. 19th Street, from which he was attempting to evict his tenants Danesia Nuttter and Bruce Booker. (Id. at 4). The deed to the property is held in the name of Enty‘s mother. (Id.) Enty was told by Defendant Tanisha Bey and one of her L&I coworkers that he could not proceed with the eviction because
Mr. Enty then called the “legal department of the City of Philadelphia” to get assistance, but that office repeated the information he received from L&I that his status as executor was irrelevant. (Id.) Enty suspects that this is not legal.2 (Id.)
Enty also describes an incident with the Department of Human Services in which he notified that agency that the children of Danesia Nuttter were living in the house while it had a sewage issue. (Id.) Apparently, a pipe in the house is cracked and, when someone flushes a toilet in the house, soiled water gushes onto the floor of the basement. (Id. at 4-5.) Enty talked with a plumber who provided an estimate of $2,700 to fix the problem. (Id. at 5.) The rent he charges his tenants is $2,000 per month. (Id.) The rent and a $700 annuity are Enty‘s only income. (Id.) When he called the Department of Human Services, a case worker who responded was Defendant Kristen Abney. (Id.) Enty told Abney the story and she also told him he would have to go through the eviction process to get the tenants out of the house. (Id.) He reminded Abney that children were living in the sewage infested house but Abney informed him “that the kids were not that young and their presence in a septic environment was not that big a deal.” (Id.) Enty was “flabbergasted” by her response. (Id.)
II. STANDARD OF REVIEW
The Court grants Enty leave to proceed in forma pauperis. Accordingly,
III. DISCUSSION
Mr. Enty asserts constitutional claims against the Defendants. The vehicle by which federal constitutional claims may be brought in federal court is
A. Claims Against the City of Philadelphia
Enty has named the City of Philadelphia as a Defendant alleging that it is responsible for what its employees do. In other words, he seeks to hold the City vicariously liable under a theory of respondeat superior. Local governments can be liable as “persons” under § 1983, however, this liability extends only to “their own illegal acts.” Connick v. Thompson, 563 U.S. 51, 60 (2011) (emphasis in original) (quoting Pembaur v. Cincinnati, 475 U.S. 469, 479 (1986)); see Monell v. Dep‘t of Soc. Servs. of City of New York, 436 U.S. 658, 665-83 (1978). This limitation is based on the well-established principle that municipalities “are not vicariously liable under § 1983 for their employees’ actions.” Connick, 563 U.S. at 60; Monell, 436 U.S. at 691 (“[A] municipality cannot be held liable solely because it employs a tortfeasor - or, in other words, a municipality cannot be held liable under § 1983 on a respondeat superior theory.“) (emphasis in original).
Because Enty has not asserted that he was injured due to a policy of the City and that the policy was the proximate cause of his injury, his claim against the City is not plausible and must be dismissed.
B. Claims Against Municipal Employees Bey and Abney
1. Equal Protection
Enty appears to raise federal constitutional claims against Defendants Bey and Abney. He alleges he has not received “equal treatment under the law.” The Court understands this statement to invoke the Equal Protection Clause of the Fourteenth Amendment which “commands that no State shall ‘deny to any person within its jurisdiction the equal protection of
2. Due Process
Enty may also be attempting to raise a due process claim based on Bey and Abney‘s statements that he could not evict his tenants because he was not the named owner of the property on the deed. Three kinds of § 1983 claims may be brought under the Due Process Clause of the Fourteenth Amendment. Zinermon v. Burch, 494 U.S. 113, 125 (1990). First, a plaintiff may bring suit under § 1983 for a violation of his specific rights as guaranteed by the Bill of Rights. Id. Second, a plaintiff may assert a Fourteenth Amendment claim under the
Third, a plaintiff may assert a claim under the “substantive” prong of the Due Process Clause, which bars certain arbitrary, wrongful government actions regardless of the fairness of the procedures used to implement them. Zinermon, 494 U.S. at 125 (quoting Daniels, 474 U.S. at 331). The substantive component of the Due Process Clause can only be violated by governmental employees when their conduct amounts to an abuse of official power that “shocks the conscience.” Fagan v. City of Vineland, 22 F.3d 1296, 1303 (3d Cir. 1994).
Enty‘s factual contentions do not appear to assert a violation of a specific right guaranteed by the Bill of Rights. Rather, he appears to assert a claim under the “procedural” aspect of the Due Process Clause, which guarantees fair procedure for the deprivation of a
However, his claims may be pigeonholed, the Complaint fails to assert plausible claims against Defendants Bey and Abney. For the procedural due process claim, as employees of L&I and DHS respectively, Bey and Abney appear to have no role in the procedures by which tenants can be evicted from real property and, concomitantly, no role affecting a property right possessed by the landlord. Rather, it is the Court of Common Pleas that has the power to grant a landlord an order to evict a tenant by the landlord‘s following the procedures set forth in the Landlord and Tenant Act of 1951,
As to a substantive due process claim, Enty‘s allegations - that (1) he told Abney the story about the failed sewage problem, (2) she responded that he would have to go through the eviction process to get the tenants out of the house, and (3) downplayed the danger to the children living in the home, leaving Enty “flabbergasted” by her response - fail to rise to the level of conscious-shocking behavior. First, Enty fails to allege what a DHS caseworker like Abney was possibly empowered to do in response to the information about the sewage leak in connection with Enty‘s attempt to evict Nuttter and Booker.4 Second, as explained, Enty‘s proper course to get help to evict the tenants - both the adults and the children was the court system, not DHS. Abney‘s advice to follow eviction proceedings to remove the tenants so Enty could address the sewage problem was not arbitrary conduct. Accordingly, the claims against the individual Defendants are also dismissed.
IV. CONCLUSION
For the stated reasons, the Court will grant Enty leave to proceed in forma pauperis and dismiss the Complaint on statutory screening pursuant to
Moreover, Mr. Enty‘s attempt to pursue fruitless Constitutional litigation will be a distraction from where he needs to direct his attention, which is to assert his rights as a landlord in Philadelphia Municipal Court, provided that he is in fact the lawful heir to the property, and can cure any Code violations (such as a leaking sewage pipe) that might forestall eviction.
An Order will be entered separately.
BY THE COURT:
/s/ Gerald Austin McHugh
GERALD A. MCHUGH, J.