Harrison v. Miller ( 2007 )


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  •                                                                                                                            Opinions of the United
    2007 Decisions                                                                                                             States Court of Appeals
    for the Third Circuit
    9-25-2007
    Harrison v. Miller
    Precedential or Non-Precedential: Non-Precedential
    Docket No. 07-2296
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    Recommended Citation
    "Harrison v. Miller" (2007). 2007 Decisions. Paper 378.
    http://digitalcommons.law.villanova.edu/thirdcircuit_2007/378
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    DLD-373                                                     NOT PRECEDENTIAL
    UNITED STATES COURT OF APPEALS
    FOR THE THIRD CIRCUIT
    ________________
    No. 07-2296
    ________________
    CLARENCE HARRISON,
    Appellant
    v.
    BILL MILLER, Salem County Engineer;
    JOSEPH FEDEMCI, JR., Salem County Engineer;
    CHARLES R. SULLIVAN, Freeholder; LEE R. WARE, Freeholder;
    SUSAN A. BESTWICK, Freeholder; BRUCE L. BOBBITT, Freeholder;
    R. BENJAMIN SIMMERMON, JR.; C. DAVID SPARKS, JR.;
    BETH E. TIMBERMAN
    ____________________________________
    On Appeal From the United States District Court
    For the District of New Jersey
    (D.C. Civ. No. 05-cv-03552)
    District Judge: Honorable Noel L. Hillman
    ____________________________________
    Submitted For Possible Dismissal Under 28 U.S.C. § 1915(e)(2)(B)
    or Possible Summary Action Under Third Circuit LAR 27.4 and I.O.P. 10.6
    September 7, 2007
    BEFORE: BARRY, AMBRO and FISHER, CIRCUIT JUDGES
    (Filed: September 25, 2007)
    _______________________
    OPINION
    _______________________
    PER CURIAM
    Appellant, Clarence Harrison, appeals from the District Court’s order granting the
    appellees’ motion for summary judgment and the District Court’s denial of Harrison’s
    motion to reconsider that dismissal. For the reasons set forth below, we will summarily
    affirm the District Court’s order.
    Harrison owns property located in Mannington Township, Salem County, New
    Jersey. In July 2005, Harrison commenced an action in the U.S. District Court for the
    District of New Jersey against several Salem County employees and freeholders (together,
    the “Salem County defendants”), alleging that he sustained injuries while jumping over a
    guardrail that the defendants had erected around his property without his consent.
    Harrison claimed that the defendants: (1) violated his constitutional rights by erecting the
    guardrail; and (2) were liable under New Jersey law for his bodily injuries. He sought ten
    million dollars in damages.
    The parties filed cross motions for summary judgment. In May 2006, the District
    Court denied both motions in order to give Harrison an opportunity to amend his
    complaint. The court explained that unless Harrison could set forth specific allegations as
    to how each of the defendants violated the United States and New Jersey Constitutions,
    and provide evidence in support of his claims, his complaint would be dismissed. In
    response, Harrison did file an amended complaint, but still failed to adequately support
    his allegations. As a result, on March 20, 2007, the District Court entered an order
    2
    granting summary judgment in favor of the Salem County defendants. Harrison
    submitted a timely motion for reconsideration, which the District Court denied on
    April 19, 2007. The present appeal followed.1
    We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291, and review a
    District Court’s grant of summary judgment de novo. Pennsylvania Coal Ass'n v. Babbitt,
    
    63 F.3d 231
    , 236 (3d Cir. 1995). Summary judgment is proper only if it appears “that
    there is no genuine issue as to any material fact and that the moving party is entitled to a
    judgment as a matter of law.” Fed. R. Civ. P. 56(c); Carrasca v. Pomeroy, 
    313 F.3d 828
    ,
    832-33 (3d Cir. 2002). If a motion for summary judgment demonstrates that no genuine
    issue of material fact exists, the nonmoving party must set forth specific facts showing a
    genuine material issue for trial and may not rest upon the mere allegations or denials of its
    pleadings. Connors v. Fawn Mining Corp., 
    30 F.3d 483
    , 489 (3d Cir. 1994). After a
    careful review of the record, we conclude that the appeal presents “no substantial
    question” under Third Circuit LAR 27.4 and I.O.P. 10.6 and will, therefore, summarily
    affirm the District Court’s order dismissing Harrison’s complaint.
    1
    In his notice of appeal, Harrison seeks review of the District Court’s order
    denying his motion for reconsideration, but does not appear to appeal from the preceding
    order entering summary judgment against him. Nonetheless, we will review both orders.
    See Williams v. Guzzardi, 
    875 F.2d 46
    , 49 (3d Cir.1989) (stating that it is proper to
    exercise appellate jurisdiction “over orders not specified in the notice of appeal if there is
    a connection between the specified and unspecified order, the intention to appeal the
    unspecified order is apparent and the opposing party is not prejudiced and has a full
    opportunity to brief the issue”).
    3
    First, the District Court properly concluded that the Salem County defendants were
    entitled to summary judgment on Harrison’s claim that they violated his Fifth and
    Fourteenth Amendment rights when they erected the guardrail without his consent. As
    the District Court explained, the Fifth Amendment, made applicable to the states through
    the Fourteenth Amendment, authorizes the state to take private property for public use if
    just compensation is paid to the owner. See United States v. 6.45 Acres of Land, 
    409 F.3d 139
    , 145 (3d Cir. 2005). Therefore, in order to make out a Takings Clause claim,
    Harrison was required to show, as a threshold matter, that the construction of the
    guardrail constituted a “taking” within the meaning of the Fifth Amendment. See 
    id. Harrison, however,
    failed to identify any specific facts or provide any affirmative
    evidence showing how the guardrail interfered with his property rights. Although
    Harrison filed an opposition to the defendants’ motion for summary judgment, the
    opposition added nothing new to the conclusory allegations in his pleadings. Therefore,
    the District Court correctly concluded that Harrison failed to set forth facts showing a
    genuine material issue for trial on his Fifth Amendment claim. See 
    Connors, 30 F.3d at 489
    .
    Furthermore, to the extent that Harrison’s pleadings can be construed as alleging a
    substantive due process claim under 42 U.S.C. § 1983, Harrison failed to allege facts
    sufficient to withstand summary judgment on that claim as well. As the Salem County
    defendants correctly noted in their motion for summary judgment, only executive action
    4
    that “shocks the conscience” constitutes a substantive due process violation. See County
    of Sacramento v. Lewis, 
    523 U.S. 833
    , 845-46 (1998); United Artists Theatre Circuit, Inc.
    v. Twp. of Warrington, Pa., 
    316 F.3d 392
    , 401 (3d Cir. 2003). 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 is “arbitrary in a
    constitutional sense.” Collins v. Harker Heights, 
    503 U.S. 115
    , 128 (1992). Here,
    Harrison failed to show that Salem County’s construction of the guardrail was in any way
    improper, let alone arbitrary or conscience shocking. Therefore, the Salem County
    defendants were entitled to summary judgment on this claim as well. See 
    Connors, 30 F.3d at 489
    .
    We also agree with the District Court that the Salem County defendants were
    entitled to summary judgment on Harrison’s negligence claim. In his pleadings, Harrison
    appears to allege that the Salem County defendants were negligent in erecting or
    maintaining the guardrail, and that their negligence caused him to suffer injuries to his leg
    and forearm, which ultimately resulted in cancer. Since the guardrail was erected by
    employees of a public entity, their liability is governed by New Jersey’s Tort Claims Act,
    N.J.S.A. 59:1-1, et seq.2 Harrison, however, failed to set forth specific facts showing that
    2
    The District Court analyzed Harrison’s negligence claim under general negligence
    law without reference to the New Jersey Tort Claims Act, N.J.S.A. 59:1-1, et seq. The
    District Court’s error is, however, harmless, as Harrison’s claim could not withstand
    summary judgment under either analysis.
    5
    there was a genuine issue for trial on this claim. See N.J.S.A. 59:4-2. Harrison did not
    present sufficient evidence to demonstrate that a reasonable jury could find that the
    guardrail constituted a dangerous condition, nor did he set forth evidence creating a
    genuine issue as to whether he sustained the alleged injuries as a result of the fall. See
    Brown v. Brown, 
    432 A.2d 493
    , 498 (N.J. 1981). Accordingly, the District Court
    correctly concluded that the Salem County defendants were entitled to summary judgment
    on Harrison’s negligence claim. See 
    Connors, 30 F.3d at 489
    .
    Finally, we have reviewed Harrison’s motion for reconsideration and the District
    Court’s April 19, 2007 order denying it, and conclude that the District Court did not abuse
    its discretion in denying the motion. The District Court correctly concluded that
    Harrison’s motion did not present any newly discovered evidence or legal precedent, and
    that Harrison failed to demonstrate the need to correct a clear error of law or fact to
    prevent manifest injustice. See Max’s Seafood Café v. Quinteros, 
    176 F.3d 669
    , 677 (3d
    Cir. 1999).
    For the foregoing reasons, we conclude that the District Court properly entered
    summary judgment against Harrison. Accordingly, as there is no substantial question
    presented by this appeal, we will summarily affirm. See Third Cir. LAR 27.4;
    I.O.P. 10.6.
    6