                                                                                                                           Opinions of the United
2003 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


6-9-2003

Gardner v. McGroarty
Precedential or Non-Precedential: Non-Precedential

Docket No. 02-1984




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                                                          NOT PRECEDENTIAL

                        UNITED STATES COURT OF APPEALS
                             FOR THE THIRD CIRCUIT


                                      No. 02-1984



                                  JOSEPH GARDNER,
                                              Appellant

                                            v.

                        THOMAS D. McGROARTY;
                    ROBERT MOSLEY; PHILIP T. KOVAL;
                 DONALD A. WITTKOPP; GERALD GOECKEL;
                   SALLY HEALEY; WILKES-BARRE CITY;
           PENNSYLVANIA POWER & LIGHT COMPANY a/k/a PP&L, Inc.;
         PENNSYLVANIA GAS AND WATER COMPANY n/k/a PG Energy, Inc.



                     On Appeal from the United States District Court
                         for the Middle District of Pennsylvania
                           D.C. Civil Action No. 99-cv-01634
                              (Honorable A. Richard Caputo)


                     Submitted Pursuant to Third Circuit LAR 34.1(a)
                                   February 27, 2003

     Before: SCIRICA, Chief Judge*, GREENBERG and GIBSON**, Circuit Judges

                                  (Filed: June 9, 2003)


  *Judge Scirica began his term as Chief Judge on May 4, 2003.

   **The Honorable John R. Gibson, United States Circuit Judge for the Eighth Judicial
Circuit, sitting by designation.
                                  OPINION OF THE COURT


SCIRICA, Chief Judge.

       Plaintiff, Joseph Gardner, appeals from an order granting defendants summary

judgment on his claims under 42 U.S.C. § 1983.1 We will affirm.

                                                I.

       Plaintiff filed this action under 42 U.S.C. § 1983 alleging violations of his

substantive and procedural due process rights under the Fourth and Fourteenth

Amendments.2 Gardner’s claims stem from a coordinated inspection of his apartment

building, which the Wilkes-Barre city defendants3 initiated in response to a complaint from

   1
    The District Court actually disposed of five motions for summary judgment. It granted
three motions for summary judgment by defendants Pennsylvania Power & Light Company,
Pennsylvania Gas & Water Company and the Wilkes-Barre city defendants (the Wilkes-
Barre mayor and other city officials acting in their official capacities). The District Court
denied Gardner’s motions for summary judgment against defendants Pennsylvania Power &
Light Company and Pennsylvania Gas & Water Company, and against the Wilkes-Barre city
defendants.
   2
    42 U.S.C. § 1983 provides: “Every person who, under color of any statute, ordinance,
regulation, custom, or usage . . . subjects, or causes to be subjected any citizen . . . or other
person ... to the deprivation of any rights, privileges, or immunities secured by the
Constitution and laws, shall be liable to the party injured in an action at law, suit in equity,
or other proper proceeding for redress.”
   3
    The Wilkes-Barre city defendants are: (1) Thomas D. McGroarty, Mayor of Wilkes-
Barre; (2) Robert Mosely, Building Inspector; (3) Philip T. Koval, Chief Housing Inspector;
(4) Donald A. Wittkopp, Fire Inspector; (5) Gerald Goeckel, Director of Bureau of Code
Enforcement; (6) Sally Healey, Coordinator of the Neighborhood Impact Team; and (7) the
city of Wilkes-Barre. The six individual defendants acted in concert through the
“Neighborhood Impact Team,” which Mayor McGroarty created in 1996 to provide city
                                                                               (continued...)

                                                2
one of his tenants. On October 1, 1997, Wilkes-Barre city defendants Wittkopp, Mosley,

Koval, and Healey entered the plaintiff’s apartment building through an unlocked door and

walked along the building’s common hallway to the on-site manager’s apartment. Gardner

entrusted the keys to the vacant apartments to his on-site manager, who consented to and

facilitated the inspection by unlocking the vacant apartments for the city inspectors. The

four Wilkes-Barre city defendants also knocked on the doors of the occupied apartments

and requested permission to conduct an inspection, which they received. But they did not

inspect any portion of Gardner’s building without consent from his on-site manager or

from the tenant of each occupied unit.

       The inspection revealed several violations of the Wilkes-Barre Housing Code, which

prompted the Wilkes-Barre city defendants to contact the city’s plumbing and heat

inspector (who is not a defendant in this case). The plumbing and heat inspector became

concerned that the flexible hoses connecting the unvented gas space heaters in the hallways

and bedrooms to the building’s gas pipe lines created an emergency situation. He contacted

defendant Pennsylvania Gas and Water Company (“PG&W”), which independently

determined that the building’s reliance on unvented gas space heaters as the sole heat

source presented a dangerous condition and constituted a direct violation of the Wilkes-

Barre Housing Code. See WILKES-BARRE, P A., HOUSING CODE art. III, § 7-97(h)(1)(e)

(1996) (providing use of space heaters must comply with applicable building and fire


  3
    (...continued)
services in targeted areas of the city and to oversee city housing code enforcement.

                                              3
prevention codes); INT ’L MECHANICAL CODE, § 926.1 (1996) (providing unvented room

heater shall not be sole source of comfort heating in dwelling units). Accordingly, PG&W

discontinued gas service to Gardner’s apartment building. After PG&W turned off the gas,

Wilkes-Barre city defendants Mosley, Koval, and Wittkopp posted Gardner’s apartment

building as unfit for habitation because of “lack of heat.” See WILKES-BARRE, P A.,

HOUSING CODE art. III, § 7-97(h) (providing that no person shall occupy dwelling without

heat). The Wilkes-Barre city defendants then ordered the removal of the tenants and closed

the building indefinitely until the code violations were remedied. The Wilkes-Barre city

defendants notified defendant Pennsylvania Power & Light Company (“PP&L”) that they

had posted Gardner’s building as unfit for habitation and requested that the electric power

be shut off. PP&L shut off power to Gardner’s building as requested.

       On October 2, 1997, defendant Goekel sent a letter to Gardner listing the violations

discovered during the inspection and apprising him of the city’s decision to post his

apartment building as unfit for habitation. The notice gave Gardner until October 30, 1997

to repair the code violations and informed him of his right to appeal the city inspectors’

decision to the Building Board of Appeals within ten days. See WILKES-BARRE, P A.,

HOUSING CODE art. III, § 7-85 (providing that aggrieved person may file appeal setting forth

reasons for contesting order within ten days of receiving written notification of order).

Despite the letter from Goekel, Gardner declined to avail himself of the appellate

procedure set forth in the Wilkes-Barre Housing Code.



                                              4
        Instead, Gardner filed this Section 1983 claim. On appeal, Gardner contends the

District Court improperly granted the defendants’ motions for summary judgment because:

(1) the defendants conducted the search and subsequent seizure of the apartment building

without a warrant and without notice to the plaintiff, a hearing, or adjudication in violation

of substantive and procedural due process requirements under the Fourth and Fourteenth

Amendments; (2) there is a material issue of fact as to the city defendants’ adherence to the

procedures for declaring a building emergency under local ordinances; and (3) there is a

material issue of fact as to whether there was an emergency justifying evacuation and

seizure of the building by the Wilkes-Barre defendants under the Wilkes-Barre Housing

Code.

                                   II. Standard of Review

        We have appellate jurisdiction under 28 U.S.C. § 1291. Our standard of review is

plenary. Taylor v. Phoenixville Sch. Dist., 184 F.3d 296, 305 (3d Cir. 1999). A motion

for summary judgment is properly granted when the record reveals no genuine issue of

material fact, and the movant is entitled to judgment as a matter of law. Jones v. Sch. Dist.

of Philadelphia, 198 F.3d 403, 409 (3d Cir. 1999). We must consider the evidence in a

manner favorable to Gardner, and afford him the benefit of reasonable inferences. Id.

                                III. Procedural Due Process

        The Fourteenth Amendment forbids state actors from depriving persons of life,

liberty, or property without due process of law. U.S. Const. amend. XIV, § 1. The Wilkes-

Barre city defendants are state actors. See Carver v. Foerster, 102 F.3d 96, 99 (3d Cir.

                                               5
1996) (recognizing that term “person” in Section 1983 includes local and state officers

acting under color of state law). The utility company defendants, however, are not state

actors. Gardner alleges that PG&W and PP&L conspired with or were coerced by the

Wilkes-Barre city defendants to unlawfully suspend gas and electric service to his

apartment building. But the District Court found, and we agree, that nothing in the record

supports this allegation.4 Therefore, we need only examine Gardner’s procedural due

process claim against the Wilkes-Barre city defendants.

       The gravamen of Gardner’s claim is that the Wilkes-Barre city defendants’

inspection and subsequent posting of his apartment building as unfit for habitation deprived

him of a Fourteenth Amendment property right without due process of law. Ordinarily,

when a plaintiff alleges that state actors have failed to provide procedural due process, we

must determine “whether the asserted individual interests are encompassed within the

fourteenth amendment's protection of ‘life, liberty, or property’; if protected interests are


   4
    The District Court observed that a utility company can be liable as a state actor under
section 1983 for terminating utility services without adequate advance notice. See Dawes
v. Philadelphia Gas Comm’n, 421 F. Supp. 806, 817 (1976). But the court also noted that
the utility defendants were statutorily authorized to discontinue service without notice in
the event of the threat of an emergency. See 66 Pa. C.S. § 1503 (providing that no public
utility may discontinue service without personally contacting customer at least three days
in advance “except when required to prevent or alleviate an emergency”). PG&W
discontinued gas service to Gardner’s apartment building after independently determining
that the gas heaters created an emergency. Similarly, PP&L discontinued electric service
after the city defendants posted the apartment building as unfit for habitation. On the basis
of these facts, no reasonable juror could conclude that PG&W or PP&L conspired with the
Wilkes-Barre city defendants to deprive Gardner of utilities service. See Anderson v.
Liberty Lobby, 477 U.S. 242, 251-52 (1986) (providing that summary judgment is
appropriate if no reasonable jury could return a verdict for nonmoving party).

                                              6
implicated, we then must decide what procedures constitute ‘due process of law.’” Robb v.

City of Philadelphia, 733 F.2d 286, 292 (3d Cir. 1984) (citing Bd. of Regents v. Roth,

408 U.S. 564, 569-72 (1972); Morrissey v. Brewer, 408 U.S. 471, 481 (1972)).

       But before a plaintiff may raise a claim for failure to provide procedural due

process, he “must have taken advantage of the processes that are available to him or her,

unless those processes are unavailable or patently inadequate.” Alvin v. Suzuki, 227 F.3d

107, 116 (3d Cir. 2000). “If there is a process on the books that appears to provide due

process, the plaintiff cannot skip that process and use the federal courts as a means to get

back what he wants.” Id. (citing McDaniels v. Flick, 59 F.3d 446, 460 (3d Cir. 1995);

Dwyer v. Regan, 777 F.2d 825, 834-35 (2d Cir. 1985), modified on other grounds, 793

F.2d 457 (2d Cir.1986); Riggins v. Bd. of Regents, 790 F.2d 707, 711-12 (8th Cir. 1986)).

Viewing the facts in a light most favorable to Gardner, we conclude that he did not avail

himself of the procedural protections afforded under the Wilkes-Barre Housing Code

because he declined to appeal the decision to post his apartment building as unfit for

habitation to the Building Board of Appeals. Gardner does not allege, nor does the record

demonstrate, that the appellate procedures set forth in the Wilkes-Barre Housing Code

were unavailable or inadequate. Therefore, we will affirm the order granting summary

judgment on Gardner’s procedural due process claims.

                           IV. Substantive Due Process Claim

       Gardner claims the defendants violated his property rights under the Fourth

Amendment when they searched his apartment building without a warrant, posted it as unfit

                                              7
for habitation, evacuated the tenants, and discontinued utility services.5 “Where a particular

Amendment provides an explicit textual source of constitutional protection against a

particular sort of government behavior, that Amendment, not the more generalized notion

of substantive due process, must be the guide for analyzing these claims.” Albright v.

Oliver, 510 U.S. 266, 273 (1994) (Rehnquist, C.J., plurality opinion). Under the Fourth

Amendment, a “search” occurs when “an expectation of privacy that society is prepared to

consider reasonable is infringed.” United States v. Jacobsen, 466 U.S. 109, 113 (1984).

“Seizure” of property occurs when there is some meaningful interference with an

individual’s possessory interests in that property, and a seizure may occur in both civil and

criminal contexts. Id. at 113.

       Although municipal searches of apartment buildings for code violations typically

require a warrant, Camara v. Municipal Court, 387 U.S. 523, 533 (1967), the defendants

“may show that permission to search was obtained from a third party who possessed

common authority over or other sufficient relationship to the premises or effects sought to

be inspected.” United States v. Matlock, 415 U.S. 164, 171 (1974). In this case, the

Wilkes-Barre city defendants entered the building through unlocked doors, and they

obtained permission from Gardner’s authorized on-site manager or from Gardner’s tenants



   5
    The Fourth Amendment provides: “The right of the people to be secure in their persons,
houses, papers, and effects, against unreasonable searches and seizures, shall not be
violated, and no Warrants shall issue, but upon probable cause, supported by Oath or
affirmation, and particularly describing the place to be searched, and the persons or things
to be seized.”

                                              8
to search all of the areas within Gardner’s apartment building in which he had a

recognizable privacy interest. Thus, the search of Gardner’s building did not run afoul of

the Fourth Amendment.

       Even though the record establishes the consensual nature of the Wilkes-Barre city

defendants’ search of his apartment building, Gardner contends the District Court

improperly granted summary judgment to the defendants on his illegal seizure claim. He

argues that a material issue of fact remains as to: (1) the city defendants’ adherence to the

procedures for declaring a building emergency under the local ordinances; and (2) whether

an emergency justifying the seizure of his building existed as a matter of law.

Preliminarily, we note that seizure of property can violate the Fourth Amendment even if

the preceding search was constitutional. Soldal v. Cook County, 506 U.S. 56, 68 (1992).

But where the seizure occurs after a valid demonstration of consent to the search, the

seizure does not violate the owner’s privacy or possessory interests. See id. at 65-66

(recognizing that seizures following valid consent to search do not result in invasion of

personal privacy).

       As the District Court noted, the decision to post Gardner’s building as unfit for

human habitation because of “lack of heat” was consistent with the requirements of the

Wilkes-Barre Housing Code. See WILKES-BARRE, P A., HOUSING CODE art. III, § 7-97(h)

(providing that no person shall occupy dwelling without heat). Therefore, an “emergency”

existed as a matter of law, and the emergency justified the seizure of Gardner’s apartment

building. Where a building is seized because of the danger it poses and adequate recourse

                                              9
is provided to challenge any action taken by the local government, the seizure does not

violate the Fourth Amendment. See Freeman v. City of Dallas, 242 F.3d 642, 651 (5th

Cir. 2001) (recognizing that where evidence of code violations is gathered in means

unchallenged by owner and administrative and judicial review of alleged code violations is

available seizure does not violate Fourth Amendment); Samuels v. Meriwether, 94 F.3d

1163, 1168 (8th Cir. 1996) (noting that “an abatement carried out in accordance with

procedural due process is reasonable in the absence of any factors that outweigh

governmental interests.”). Because the search and seizure of Gardner’s apartment building

did not violate the Fourth Amendment, there is no substantive due process violation.

                                      V. Conclusion

       For the foregoing reasons, we will affirm the order of the District Court granting

summary judgment to the Wilkes-Barre city defendants, PG&W, and PP&L.




                                            10
TO THE CLERK:

          Please file the foregoing opinion.



                                      Anthony J. Scirica
                                      Chief Judge
