Posted by: Patricia Salkin | January 29, 2014

Third Circuit Court of Appeals Dismisses Claim of Constitutional Rights Violation in the Denial of a Zoning Permit Due to Improper Service

Wessie Sims, acting pro se, filed a complaint in the United States District Court for the Eastern District of Pennsylvania, which asserted violations of her constitutional rights in the denial of the zoning permit. The District Court issued an order to Sims that her complaint against the individual defendants was subject to dismissal for failure to effect proper service on them within 120 days of the filing of the complaint, and accordingly dismissed the complaint pursuant to Fed.R.Civ.P. 12(b)(6) for failure to state a claim upon which relief can be granted.

The Third Circuit found that Sims failed to plead facts that would indicate that her zoning permit was denied pursuant to a municipal policy or custom of misleading applicants regarding their zoning permit requests. Sims’s principal brief argued that the Zoning Board had failed to follow its policies and procedures in voting on issues unrelated to those raised at the hearing; however, the court noted that the failure of individual City employees to follow an otherwise-constitutional municipal policy does not subject the municipality to liability under § 1983.

Sims further alleged that she effected service on the individual defendants by having the summons delivered to Chad June, a man who worked in the Philadelphia Municipal Services Building. Despite this, Sims had not provided any information that would indicate June had a relationship with any of the individual defendants that would enable him to receive service on their behalf. Accordingly, the Court of Appeals for the Third Circuit found Sims has not met her burden, and the District Court properly dismissed the complaint as to the individual defendants.

Sims v. City of Philadelphia, 2014 WL 68795 (3d Cir. 2014)

The opinion can be accessed at:

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