IN THE UNITED STATES DISTRICT COURT 

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

LEROY IVERSON :

: CIVIL ACTION

v. :

: NO. 04-2275

CITY OF PHILADELPHIA :

MEMORANDUM

Padova, J. June 27, 2005

Plaintiff has brought this civil rights action pursuant to 42

U.S.C. § 1983 against the City of Philadelphia (“City”), arising

from the City’s demolition of a residential building owned by

Plaintiff. Presently before the Court is Defendant’s Motion for

Summary Judgment. For the reasons that follow, said Motion is

granted.

I. BACKGROUND

Plaintiff is the owner of the premises located at 6241 Market

Street, Philadelphia, Pennsylvania (hereinafter, “Market Street

premises”), which he rented out to residential tenants. On April

11, 2002, the City filed a Complaint in equity against Plaintiff in

the Court of Common Pleas of Philadelphia County (“Court of Common

Pleas”), alleging that Plaintiff’s Market Street premises were

unsafe due to various Philadelphia Code of Ordinances violations.

The City sought a permanent injunction requiring Plaintiff to

remedy these code violations and, should Plaintiff fail to do so,

court authorization to abate the unsafe conditions by demolishing

the building. Plaintiff hired counsel to represent him in the

state court proceedings, and from July 17, 2002, through March 5,

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2003, attended six court hearings in connection with the action.

Plaintiff, however, failed to attend the final state court hearing,

which was held on May 20, 2003. At this hearing, the state court

judge entered an order authorizing the City and/or its contractors

to demolish Plaintiff’s Market Street premises (hereinafter “May

20, 2003 order). The City served a copy of the May 20, 2003 order

on Plaintiff by certified and regular mail, and forwarded the order

to the City’s Department of Licenses and Inspections to initiate

the demolition. 

Plaintiff did not file a motion for reconsideration of the

court’s May 20, 2003 order, but rather filed a pro se “Motion to

Vacate Default Judgment” on June 20, 2003. Plaintiff attempted to

effect service on the City by mailing a copy of his motion to the

Deputy City Solicitor, but due to an error in the mailing address

the City’s counsel never received Plaintiff’s mailing. On July 31,

2003, without having received any further submissions from the City

and although no default judgment had been entered, the Court of

Common Pleas granted Plaintiff’s “Motion to Vacate Default

Judgment,” and entered an order vacating default judgment on August

4, 2003 (hereinafter “August 4, 2003 order”). That same day, the

Court of Common Pleas, pursuant to Pennsylvania Rule of Civil

Procedure 236, gave notice of its August 4, 2003 order. In April

2004, the City caused Plaintiff’s Market Street premises to be

demolished.

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II. STANDARD OF REVIEW

Summary judgment is appropriate “if the pleadings,

depositions, answers to interrogatories, and admissions on file,

together with affidavits, if any, show that there is no genuine

issue as to any material fact and that the moving party is entitled

to judgment as a matter of law.” Fed. R. Civ. P. 56(c). An issue

is “genuine” if the evidence is such that a reasonable jury could

return a verdict for the non-moving party. Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 248 (1986). A factual dispute is

“material” if it might affect the outcome of the case under

governing law. Id.

A party seeking summary judgment always bears the initial

responsibility for informing the district court of the basis for

its motion and identifying those portions of the record that it

believes demonstrate the absence of a genuine issue of material

fact. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). Where

the non-moving party bears the burden of proof on a particular

issue at trial, the movant’s initial Celotex burden can be met

simply by “pointing out to the district court that there is an

absence of evidence to support the non-moving party’s case.” Id.

at 325. After the moving party has met its initial burden, “the

adverse party’s response, by affidavits or otherwise as provided in

this rule, must set forth specific facts showing that there is a

genuine issue for trial.” Fed. R. Civ. P. 56(e). That is, summary

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judgment is appropriate if the non-moving party fails to rebut by

making a factual showing “sufficient to establish the existence of

an element essential to that party’s case, and on which that party

will bear the burden of proof at trial.” Celotex, 477 U.S. at 322.

Evidence introduced to defeat or support a motion for summary

judgment must be capable of being admissible at trial. Callahan v.

AEV, Inc., 182 F.3d 237, 252 n.11 (3d Cir. 1999) (citing Petruzzi's

IGA Supermarkets, Inc. v. Darling-Delaware Co., 998 F.2d 1224, 1234

n.9 (3d Cir. 1993)). The Court must view the evidence presented on

the motion in the light most favorable to the opposing party.

Anderson, 477 U.S. at 255. However, “the non-moving party cannot

rely on unsupported assertions, conclusory allegations, or mere

suspicions in attempting to survive a summary judgment motion.”

Butler v. County of Bucks, No. Civ. A. 03-4689, 2005 WL 639721, at

*3 (E.D. Pa. Mar. 18, 2005) (citing Williams v. Borough of W.

Chester, 891 F.2d 458, 460 (3d Cir. 1989)).

III. DISCUSSION

The Amended Complaint alleges a single cause of action against

the City of Philadelphia for violation of Plaintiff’s Fifth and

Fourteenth Amendment rights to procedural due process pursuant to

42 U.S.C. § 1983. Section 1983 

provides a remedy against ‘any person’ who,

under the color of law, deprives another of

his constitutional rights. To establish a

claim under § 1983, a plaintiff must allege

(1) a deprivation of a federally protected

right, and (2) commission of the deprivation

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by one acting under color of state law. 

Price v. Pa. Prop. & Cas. Ins. Co. Ass’n, 158 F. Supp. 2d 547, 550

(E.D. Pa. 2001) (citing Carter v. City of Philadelphia, 989 F.2d

117, 119 (3d Cir. 1993); Lake v. Arnold, 112 F.3d 682, 689 (3d Cir.

1997)). Here, the parties do not dispute that the City’s actions

were taken under color of state law. Accordingly, the Court must

only inquire into whether Plaintiff’s constitutional rights were

violated. 

1. Constitutional Violation

At the outset, the City argues Plaintiff’s Fifth Amendment

claim must be dismissed because Plaintiff has not complained about

federal action. “It is axiomatic that a plaintiff seeking relief

pursuant to the Fifth Amendment must complain of federal government

action.” Kienle v. O’Malley, No. Civ. A. 95-2154, 1995 WL 453785,

at *1 (E.D. Pa. July 24, 1995) (quotation omitted). Here,

Plaintiff has not alleged any unlawful acts taken by the federal

government. Accordingly, Defendant’s Motion for Summary Judgment

is granted with respect to Plaintiff’s Fifth Amendment claim. 

The Fourteenth Amendment to the United States Constitution

protects a person from state action that deprives him of “life,

liberty or property, without due process of law.” U.S. Const.

amend. XIV § 1. “The essential principle of procedural due process

is that a deprivation of life, liberty or property should be

preceded by ‘notice and opportunity for a hearing appropriate to

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the nature of the case.’” Price, 158 F. Supp. 2d at 552 (citing

Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 542 (1985)).

Plaintiff contends that Defendant, acting under color of state law,

deprived him of his Fourteenth Amendment right to procedural due

process by demolishing his Market Street premises despite the Court

of Common Pleas’ order vacating default judgment. The parties do

not dispute that Plaintiff’s interest in the demolished building is

encompassed by the Fourteenth Amendment’s protection of property.

The parties further agree that the procedure provided by

Pennsylvania state courts for the demolition of a residence that is

in violation of the Philadelphia Code of Ordinances is

constitutionally adequate, and do not contend that any other

procedure should have been followed in this case. However, the

parties differ with respect to whether those procedures were, in

fact, followed in this case. The Court need not decide whether

there is a genuine issue of material fact whether Plaintiff’s

constitutional rights in fact were violated, because Plaintiff has,

in any event, failed to establish that municipal liability could

attach in this case. 

2. Municipal liability

It is well established that mere fact “[t]hat a plaintiff has

suffered a deprivation of federal rights at the hands of a

municipal employee will not alone permit an inference of municipal

culpability and causation.” Board of County Comm’rs of Bryan

Case 2:04-cv-02275-JP Document 22 Filed 06/28/05 Page 6 of 12
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County, Oklahoma v. Brown, 520 U.S. 397, 406 (1997). The City

argues that municipal liability does not attach and it is entitled

to the entry of summary judgment in its favor because (1) Plaintiff

cannot establish that his Fourteenth Amendment right to procedural

due process was violated as a result of a policy, custom or

practice of the City of Philadelphia; and (2) Plaintiff has failed

to present scienter-like evidence of indifference on part of a

particular policymaker. It is well-established that the City

cannot be held liable under Section 1983 “solely because it employs

a tortfeasor – or, in other words, a municipality cannot be held

liable under § 1983 on a respondeat superior theory.” Monell v.

New York City Dept. of Soc. Serv., 436 U.S. 658, 691 (1978)

(emphasis in original). The Supreme Court concluded in Monell

that:

a local government may not be sued under §

1983 for an injury inflicted solely by its

employees or agents. Instead, it is when

execution of a government's policy or custom,

whether made by its lawmakers or by those

whose edicts or acts may fairly be said to

represent official policy, inflicts the injury

that the government as an entity is

responsible under § 1983. 

Id. at 694. “To establish municipal liability under Monell, a

plaintiff must ‘identify the challenged policy, [practice or

custom], attribute it to the city itself, and show a causal link

between the execution of the policy, [practice or custom] and the

injury suffered.’” Martin v. City of Philadelphia, No. Civ. A. 99-

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543, 2000 WL 1052150, at *10 (E.D. Pa. July 24, 2000) (quoting

Fullman v. Phila. Int'l Airport, 49 F. Supp. 2d 434, 445 (E.D. Pa.

1999)) (additional citations omitted). A government’s policy is

established when “a ‘decisionmaker possess[ing] final authority to

establish municipal policy with respect to the action’ issues an

official proclamation, policy, or edict.” Andrews v. City of

Philadelphia, 895 F.2d 1469, 1480 (3d Cir. 1990) (quoting Pembaur

v. City of Cincinnati, 475 U.S. 469, 481 (1986)). A course of

conduct becomes a custom when, “though not authorized by law, ‘such

practices of state officials [are] so permanent and well settled’

as to virtually constitute law.” Id. (quoting Monell, 436 U.S. at

690). It is the plaintiff’s burden to show that “a policymaker is

responsible either for the policy or, through acquiescence, for the

custom.” Id. A policymaker is an official with “final,

unreviewable discretion to make a decision or take an action.” Id.

at 1481 (citing City of St. Louis v. Praprotnik, 485 U.S. 112, 142

(1988)). Even high ranking officials are not policymakers for

purposes of Section 1983 if their decisions are constrained by

policies put into place by others, or if their decisions are

reviewable. Praprotnik, 485 U.S. at 127 (emphasis in original).

“The Third Circuit has held that plaintiffs can establish

liability based solely on a municipal policy or custom if the

plaintiffs have both connected the policy to a constitutional

injury and adduced evidence of scienter on the part of a municipal

Case 2:04-cv-02275-JP Document 22 Filed 06/28/05 Page 8 of 12
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actor with final policymaking authority in the areas in question.”

Hansberry v. City of Philadelphia, 232 F. Supp. 2d 404, 412 (E.D.

Pa. 2002) (quotation omitted). Accordingly, to state a valid

Section 1983 claim against a municipality, “plaintiffs must

‘present scienter-like evidence of indifference on the part of a

particular policymaker or policymakers.’” Butler, 2005 WL 639721,

at *5 (quoting Beswick v. City of Philadelphia, 185 F. Supp. 2d

418, 427 (E.D. Pa. 2001)).

The City argues that summary judgment should be entered in its

favor because Plaintiff has failed to produce any evidence that the

City maintained a policy, practice, or custom of demolishing

individually owned buildings without proper court authorization.

Indeed, the only evidence provided by Plaintiff in support of his

contention that the City followed a policy, practice, or custom

when it demolished his Market Street premises despite the August 4,

2003 order is his own affidavit. In his affidavit, Plaintiff

states that “the actions of the City and its agents in this case

are consistent with its actions in similar cases.” (Resp. Ex. B.)

Plaintiff, however, has not identified a single other incident in

which the City demolished an individual’s building, much less any

incident in which the City did so although the court order

authorizing the demolition had been vacated. 

To the extent Plaintiff brings his Fourteenth Amendment claim

on the basis of a single incident, the Court notes that “an

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unconstitutional policy [may] be inferred from a single decision

taken by the highest officials responsible for setting policy in

that area of the government’s business.” Brennan v. Norton, 350

F.3d 399, 428 (3d Cir. 2003) (quoting City of St. Louis v.

Praprotnik, 485 U.S. 112, 123 (1988) (plurality opinion)). A

plaintiff who brings a cause of action under Section 1983 based on

a single decision by a municipality must not only produce evidence

that the municipality acted and the plaintiff suffered a

deprivation of federal rights, but also establish fault and

causation. See Board of County Comm’rs of Bryan County, 520 U.S.

at 406. Here, Plaintiff has failed to identify who ultimately

decided to order the demolition of his Market Street premises on

behalf of the City, much less demonstrated that this person was

“the highest official[] responsible for setting policy in that area

of the [City’s] business.” Brennan, 350 F.3d at 428. 

It is well established that “the non-moving party cannot rely

on unsupported assertions, conclusory allegations, or mere

suspicions in attempting to survive a summary judgment motion.”

Butler, 2005 WL 639731, at *3. As Plaintiff has not supported his

assertions, allegations, and suspicions with any evidence

whatsoever, the Court finds that Plaintiff has failed to establish

a genuine issue of material fact as to whether the City was

following a policy, custom or practice when it demolished

Plaintiff’s Market Street premises despite the Court of Common

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1 The Court further notes that Plaintiff has similarly

failed to present any evidence which would establish “scienter on

the part of a municipal actor with final policymaking authority in

the areas in question.” Hansberry, 232 F. Supp. 2d at 412

(quotation omitted). Indeed, Plaintiff has not identified a single

municipal actor, much less produced any scienter-like evidence of

deliberate, willful, wanton or reckless conduct.

11

Pleas’ August 4, 2003 order. Accordingly, the City’s Motion for

Summary Judgment is granted with respect to Plaintiff’s Fourteenth

Amendment claim.1

IV. CONCLUSION

For the foregoing reasons, the City’s Motion for Summary

Judgment is granted.

An appropriate order follows.

Case 2:04-cv-02275-JP Document 22 Filed 06/28/05 Page 11 of 12
IN THE UNITED STATES DISTRICT COURT 

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

LEROY IVERSON :

 : CIVIL ACTION

v. :

 : NO. 04-2275

CITY OF PHILADELPHIA :

ORDER

AND NOW, this 27th day of June, 2005, upon consideration of

Defendant’s Motion for Summary Judgment (Docket No. 18) and

Plaintiff’s response thereto, IT IS HEREBY ORDERED that said Motion

is GRANTED in its entirety, and judgment is entered in favor of

Defendant and against Plaintiff on Plaintiff’s claims.

BY THE COURT

/s/ John R. Padova

___________________

John R. Padova, J.

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