Sandra Harmon v. Department of Finance

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 22-1556
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SANDRA HARMON,
Appellant
v.
DEPARTMENT OF FINANCE, Sussex Co. Delaware; JASON
ADKINS, individually and in his capacity as defense counsel for Sussex
County Administration; SUSSEX COUNTY BOARD OF ADJUSTMENT &
APPEALS MEMBERS; DALE CALLAWAY, Chairman individually and in his
capacity as Chairman; ELLEN MAGEE, individually and in his capacity as a
board member; J. BRUCE MEARS, individually and in his capacity as a board
member; JOHN MILLS, individually and in his capacity as a board member;
E. BRENT WORKMAN, individually and in his capacity as a board
member; SUSSEX COUNTY ADMINISTRATION
____________________________________
On Appeal from the United States District Court
for the District of Delaware
(D.C. Civil Action No. 1-18-cv-01021)
District Judge: Honorable Richard G. Andrews
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
November 25, 2022
Before: JORDAN, GREENAWAY, Jr., and NYGAARD, Circuit Judges
(Opinion filed: December 13, 2022)
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OPINION *
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*
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
PER CURIAM
Pro se appellant Sandra Harmon appeals the District Court’s order dismissing her
complaint as barred by res judicata. For the reasons discussed below, we will vacate the
District Court’s judgment and remand for further proceedings.
This is Harmon’s second federal action concerning property that she owned in
Rehoboth Beach, Delaware. She filed her first complaint on October 30, 2017. See D.
Del. Civ. No. 1-17-cv-01817. There, she alleged that, due to fire damage, Sussex County
issued a demolition order, which directed her to raze and remove the structure on or
before June 24, 2017. She attempted to challenge that order, but did not pay the filing
fee, and the home was demolished on September 14, 2017. In her complaint, Harmon
challenged the demolition, alleging that the defendants—Sussex County and three Sussex
County employees—had violated her constitutional right to enjoy her property, violated
her due process rights, and had conspired to deprive African-Americans of their beach
property. The defendants filed a motion for summary judgment, which the District Court
granted. We affirmed that judgment. See Harmon v. Sussex Cnty., 810 F. App’x 139 (3d
Cir. 2020).
In July 2018, Harmon filed another action in the United States District Court for
the District of Delaware. In this complaint, Harmon principally challenged a subsequent
sheriff’s sale of the property, which occurred on June 19, 2018. She alleged that the
defendants—the Sussex County Department of Finance and six Sussex County
2
employees—had violated her constitutional rights and committed RICO violations. The
District Court dismissed the complaint, concluding that because the first civil action (No.
1-17-cv-01817) had been finally resolved adversely to Harmon, res judicata barred this
second suit. Harmon appealed.
We have jurisdiction under 28 U.S.C. § 1291. We exercise plenary review over
the District Court’s application of res judicata. See Elkadrawy v. Vanguard Grp., Inc.,
584 F.3d 169, 172 (3d Cir. 2009).
The District Court erred in concluding that judgment in Harmon’s first action
barred her complaint in this one. We have “adopted a bright-line rule that res judicata
does not apply to events post-dating the filing of the initial complaint.” Morgan v.
Covington Twp., 648 F.3d 172, 177 (3d Cir. 2011). The sheriff’s sale occurred more
than eight months after Harmon filed her first complaint, and therefore the first action
does not bar her claims challenging the sheriff’s sale. The District Court reasoned that
Harmon could have amended her complaint in the first action to include these later-
arising claims, but Morgan chose its bright-line rule in part to avoid “disputes about
whether plaintiffs could have amended their initial complaints to assert claims based on
later-occurring incidents.” Id. 1
1
Indeed, in the District Court’s opinion leading to this appeal, the Court explained “[a]t
summary judgment [in the first action], Plaintiff argued that Defendants unlawfully took
her property and sold it at a Sheriff’s Sale and that Defendants arbitrarily and
capriciously applied rules, procedures, and policies, all in violation of her right to due
process. Plaintiff did not raise this claim in her complaint and it was not considered.”
ECF No. 69 at 4 n.3.
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The appellees argue that we “limited” Morgan’s bright-line rule in Sims v.
Viacom, Inc., 544 F. App’x 99 (3d Cir. 2013), but we disagree. Sims did not mention
Morgan or purport to distinguish it; and, in any event, Sims is a not-precedential opinion,
and “[n]ot precedential opinions are, by definition, not binding on this Court, and our
internal operating procedures do not allow us to cite and rely upon those opinions.”
Chehazeh v. Att’y Gen., 666 F.3d 118, 128 n.12 (3d Cir. 2012) (citing 3d Cir. I.O.P. 5.7).
We thus continue to apply Morgan’s rule.
Accordingly, we will vacate the District Court’s order and remand for further
proceedings consistent with this opinion. 2
2
The appellees’ motion to file a supplemental appendix and the appellant’s motion to file
supplemental exhibits are granted.
4