                                                                                                                           Opinions of the United
2009 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


5-26-2009

DeLaine Andrews v. Borough of Collingsd
Precedential or Non-Precedential: Non-Precedential

Docket No. 08-1532




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                                                 NOT PRECEDENTIAL

          UNITED STATES COURT OF APPEALS
               FOR THE THIRD CIRCUIT
                    ___________

                        No. 08-1532
                        ___________

                   DELAINE ANDREWS;
                   TAMIKA ANDREWS,
                                 Appellant

                              v.

   BOROUGH OF COLLINGSDALE; MARTIN SCHILLER;
  CAROL EBINGER; FRANK KELLY; STEPHEN BECKSON;
         CHARLES LAUT; JOHN DOES I AND II
        ____________________________________

        On Appeal from the United States District Court
           for the Eastern District of Pennsylvania
            (D.C. Civil Action No. 06-cv-01374)
          District Judge: Honorable Anita B. Brody
         ____________________________________

        Submitted Pursuant to Third Circuit LAR 34.1(a)
                        May 21, 2009

Before: FISHER, JORDAN and VAN ANTWERPEN, Circuit Judges

                 (Opinion filed: May 26, 2009)
                        ___________

                         OPINION
                        ___________
PER CURIAM

       DeLaine and Tamika Andrews, proceeding pro se, appeal from the judgment of the

United States District Court for the Eastern District of Pennsylvania, entering summary

judgment in favor of Appellees. For the reasons that follow, we will affirm.

       As the parties are, by now, intimately familiar with the facts of this case, we will

only briefly recite them here. Appellants are African American female sisters who have

owned the home at 512 MacDade Boulevard in the Borough of Collingdale since 1992.

They purchased it with the intent of using it as a rental property. In November of 1999,

Collingwood Health Inspector Carol Ebinger visited the property in response to a

complaint from the tenants that the property lacked heat. Following her inspection, she

issued a citation to Tamika Andrews, the record owner, stating that the home was unfit

for human habitation. Ebinger and the Borough’s Fire Chief again inspected the home in

May of 2000, and upon discovering broken windows, a clogged chimney, a non-

functioning heater, corroded kerosene heaters, evidence of a rodent infestation and bird

feces, Ebinger issued a second citation and placed a padlock on the property, such that

Appellants could only enter the home with the assistance of Borough employees. For the

next four years, neither of the Appellants returned to Collingdale to address the housing

violations or repair the home.

       On March 30, 2006, Appellants initiated the underlying lawsuit in the United

States District Court for the Eastern District of Pennsylvania, and on June 1, 2006, they



                                              2
amended their complaint. In their amended complaint, they alleged that Appellees, the

Borough of Collingwood and five of its officials, pursuant to 42 U.S.C. §§ 1981 and

1983: (1) violated their Fourteenth Amendment right to equal protection by declaring the

house unfit for human habitation and padlocking it but failing to take the same course of

action with the comparable houses of non-minority individuals; (2) retaliated against them

in violation of the First Amendment for filing a complaint with the Pennsylvania Human

Rights Commission claiming that the Borough issued citations to them in error; (3)

violated their Fourteenth Amendment right to substantive due process by denying them

the full use and enjoyment of their property by preventing them from selling the house in

“as is” condition; (4) employed racially discriminatory practices or customs in violation

of Monell v. Department of Social Services, 436 U.S. 658 (1978); and (5) interfered with

their right to contract. They also alleged malicious prosecution in violation of state law.

       In an order entered on March 14, 2007, the District Court granted in part and

denied in part Appellees’ motion to dismiss, limiting Appellants’ claims to the two-year

period immediately preceding the filing of their complaint, and ordering Appellees to

make available to Appellants all records regarding property found to be uninhabitable

during that two-year period. On January 22, 2008, the District Court entered summary

judgment in favor of Appellees on all remaining claims. On Appellants’ equal protection

claim, the Court held that Appellants failed to provide any evidence of similarly

uninhabitable homes which the Borough did not padlock. See Bradley v. United States,



                                              3
299 F.3d 197, 205 (3d Cir. 2002) (holding that, to prove discriminatory effect, the

complainant must show that she was a member of a protected class and was treated

differently from similarly situated individuals in an unprotected class). In so holding, the

Court rejected Appellants’ argument that, in light of Appellees’ selective enforcement of

the Borough ordinances, in conjunction with Appellants’ recollection of certain racist

remarks allegedly made by Appellees Ebinger and Shiller, Appellants were not required

to show that other non-minority homeowners were treated differently.1

       On their retaliation claim, the District Court held that Appellants provided no

evidence to support their assertion that there was a nexus between their protected

activities and the Borough’s alleged adverse actions. See Lauren W. ex rel. Jean W. v.

DeFlaminis, 480 F.3d 259, 267 (3d Cir. 2007) (explaining that plaintiff bears the burden

of establishing the requisite causal connection, either by proving (1) an unusually

suggestive temporal proximity between the two actions or (2) a pattern of antagonism

coupled with timing). We have encouraged district courts to be vigilant in requiring




 1
   On appeal, Appellants claim that the District Court did not receive the exhibits attached
to their summary judgment opposition brief in which they nonetheless identified homes of
non-minority homeowners which were not subject to the same treatment as theirs.
Appellants addressed this issue in their opposition brief and in their declaration.
Accordingly, whatever evidence they had was properly presented to the District Court,
which concluded that it was insufficient to support their claim of an equal protection
violation. Based on the foregoing, there is no need to remand this matter to the District
Court to supplement the record.

                                             4
proof of such a causal connection so as to prevent public actors from being chilled from

taking legitimate action for fear of a resulting lawsuit. See id. at 267-68.

       With respect to their substantive due process claim, the Court held that while

Appellants did have a protected property interest in their home, DeBlasio v. Zoning Board

of Adjustment, 53 F.3d 592, 600 (3d Cir. 2003) (abrogated on other grounds by United

Artists Theatre Circuit, Inc. v. Twp. of Warrington, 316 F.3d 392 (3d Cir. 2003)), they

failed to demonstrate any behavior on the part of the Borough or any of its employees that

“shocks the conscience.” United Artists, 316 F.3d at 399-400. As the Court held, the

Borough’s requirement that homes within its border be made fit for human habitation or

that sufficient funds be put into escrow prior to the sale to cover the necessary repairs

clearly does not shock the conscience.

       On Appellants’ Monell claim, the Court held that Appellants had not offered any

evidence that the Borough had an established policy or practice of discriminating against

minority property owners in general, or against them in particular. See Monell, 436 U.S.

at 690. With respect to Appellants’ claim regarding the interference with their right to

contract, the Court held that Appellants had failed to even allege the type of “purposeful

discrimination” required to state a claim under section 1981. See Gen. Bldg. Contractors

Ass’n, Inc. v. Pennsylvania, 458 U.S. 375, 390 (1982) (holding that § 1981 only reaches

conduct motivated by a discriminatory purpose). Requiring Appellants to repair their

home or escrow sufficient funds to effect such repairs prior to sale does not meet this



                                              5
criterion. Finally, the Court held that as Appellants failed to even address their malicious

prosecution claim in their summary judgment opposition brief, it would enter judgment

against them on that claim.

       We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291. We review

the District Court’s decision to grant a motion to dismiss de novo. DeHart v. Horn, 390

F.3d 262, 272 (3d Cir. 2004). We also exercise plenary review over the District Court’s

entry of summary judgment, viewing the underlying facts and all reasonable inferences

therefrom in the light most favorable to Appellant, the non-moving party. See Norfolk

Southern Ry. v. Basell USA Inc., 512 F.3d 86, 91 (3d Cir. 2008). Summary judgment is

appropriate only if “there is no genuine issue as to any material fact and . . . the moving

party is entitled to judgment as a matter of law.” See Fed. R. Civ. P. 56(c).

       In their informal appeal brief, Appellants challenge the District Court’s dismissal

of any claims accruing more than two years prior to the filing of the complaint and the

District Court’s entry of summary judgment against them.2 First, Appellants challenge

the limitation of their claims to events occurring within two years of the filing of the



 2
   Appellants also seek to “appeal” the District Court’s order of October 6, 2006
requiring them to provide the Borough with the name of an L&I certified home and
building inspector by October 18, 2006 and to have the property inspected at the cost of
the Borough. They do not argue that the District Court erred in ordering the inspection at
the Borough’s expense. Rather, they contend that they had the home inspected but that
the Borough did not compensate them for the cost. To the extent Appellants seek
enforcement of the Court’s October 6, 2006 order, they must do so in the District Court.
At present, there is no order granting or denying such enforcement over which we could
exercise review.

                                              6
complaint. They contend that the violations of their constitutional and civil rights were

ongoing, as the property was padlocked from May of 2000 through February of 2004,

during which time they were denied access and the property was damaged and became

uninsured. As this Court has held, “[the] continuing conduct of defendant will not stop

the ticking of the limitations clock begun when plaintiff obtained [the] requisite

information. On discovering an injury and its cause, a claimant must choose to sue or

forego that remedy.” Kichline v. Consol. Rail Corp., 800 F.2d 356, 360 (3d Cir. 1986);

see also Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 113 (2002) (holding that

“discrete discriminatory acts are not actionable if time barred, even when they are related

to acts alleged in timely filed charges. Each discriminatory act starts a new clock for

filing charges alleging that act.”). Appellants could have initiated this lawsuit upon

receiving the initial citation of the property as uninhabitable or upon the padlocking of the

door. The mere fact that they continued to be affected by the repercussions of these initial

acts does not render their claims regarding these earlier actions timely. Accordingly, we

will affirm the District Court’s order dismissing those claims which accrued more than

two years prior to the filing of the complaint.

       In support of their summary judgment claims, Appellants point to various vague,

unsworn statements which purport to demonstrate racial bias on the part of the Appellees.

They also allege that other properties in the Borough received certificates of occupancy

and were permitted to be rented or sold with various defects. They do, not, however,



                                              7
demonstrate that these properties were uninhabitable. For all of the reasons given by the

District Court, we agree that Appellees were entitled to judgment as a matter of law and,

accordingly, we will affirm. Appellants’ motion for sanctions, motion to supplement the

District Court record, and amended motion to supplement the District Court record are

denied.




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