William Tomko, Jr. v. Baldwin Borough

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
____________
No. 21-2593
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WILLIAM G. TOMKO, JR.,
trading and doing business as
MISSIONARY PARTNERS, LTD.,
Appellant
v.
BALDWIN BOROUGH;
ROBERT FIREK;
JASON STANTON
____________
On Appeal from the United States District Court
for the Western District of Pennsylvania
(D.C. No. 2-20-cv-00822)
District Judge: Honorable William S. Stickman, IV
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Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
April 29, 2022
Before: HARDIMAN, RENDELL and FISHER, Circuit Judges.
(Filed: June 1, 2022)
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OPINION *
____________
*
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7
does not constitute binding precedent.
FISHER, Circuit Judge.
William Tomko, Jr., individually and on behalf of his business, Missionary
Partners, Ltd., appeals the District Court’s order dismissing his complaint against
Baldwin Borough and several Borough employees (together, the “Defendants”). The
complaint alleges the Defendants, individually and together in a civil conspiracy, violated
Tomko’s constitutional rights by arbitrarily and illegally depriving him of the free use
and enjoyment of his property. Because Tomko failed to sufficiently plead both his
substantive due process and civil conspiracy claims, 1 we will affirm. 2
A claim for deprivation of substantive due process under 42 U.S.C. § 1983requires the plaintiff to allege that (1) government actors deprived him of a protected
property interest and (2) their behavior “shocks the conscience.” 3 Because the parties do
not dispute that Tomko was deprived of a protected property interest, we focus on
whether the Defendants’ behavior shocked the conscience.
Whether behavior shocks the conscience “varies depending upon factual
1
The District Court also dismissed Tomko’s breach of contract claim, which is not
at issue on appeal, under 28 U.S.C. § 1367(c) without prejudice.
2
The District Court had jurisdiction under 28 U.S.C. §§ 1331 (federal question)
and 1343 (federal civil rights). We have jurisdiction under 28 U.S.C. § 1291 (final
decision). We review de novo a district court’s dismissal of a complaint under Federal
Rule of Civil Procedure 12(b)(6). Phillips v. Cnty. of Allegheny, 515 F.3d 224, 230 (3d
Cir. 2008). We accept all well-pleaded factual allegations in the complaint as true and
draw all reasonable inferences in the plaintiff’s favor. Id. at 228.
3
Eichenlaub v. Twp. of Indiana, 385 F.3d 274, 285 (3d Cir. 2004); United Artists
Theatre Circuit, Inc. v. Twp. of Warrington, 316 F.3d 392, 399–400, 402 (3d Cir. 2003).
2
context,” 4 but “encompasses ‘only the most egregious official conduct.’” 5 Conscience-
shocking conduct includes corruption, self-dealing, ethnic bias, or interference with an
otherwise protected constitutional activity. 6 “[T]his test is designed to avoid converting
federal courts into super zoning tribunals.” 7 “Land-use decisions are matters of local
concern, and such disputes should not be transformed into substantive due process claims
based only on allegations that government officials acted with ‘improper’ motives.” 8
Tomko argues that his complaint alleges several instances of conscience-shocking
behavior. But none of Tomko’s allegations meet the test’s demanding standard.
Tomko claims the Defendants ignored prior land-use agreements; attempted to
compel him to relocate the sewer running under his property; declined his grading permit
application; prevented employees from working on the property; enforced the denial of
his application through police presence, surveillance, and threats; and caused him to lose
business associated with his use of the land. Accepting Tomko’s factual allegations as
true, as we must, our case law forecloses us from concluding this behavior shocks the
conscience. In Eichenlaub v. Township of Indiana, we held that government officials
selectively enforcing subdivision requirements, unexpectedly and unnecessarily
4
Chainey v. Street, 523 F.3d 200, 220 (3d Cir. 2008).
5
United Artists, 316 F.3d at 400 (quoting Cnty. of Sacramento v. Lewis, 523 U.S.
833, 846 (1998)).
6
Eichenlaub, 385 F.3d at 286.
7
Id. at 285.
8
United Artists, 316 F.3d at 402.
3
inspecting the property, delaying permits and approvals, improperly increasing tax
assessments, and “malign[ing] and muzzl[ing]” the property owners did not shock the
conscience. 9 There were no allegations that the township was motivated by corruption or
self-dealing, so we held that “these complaints are examples of the kind of disagreement
that is frequent in planning disputes.” 10
Tomko labels the Defendants’ actions “corruption” and “self-dealing,” 11 but the
complaint does not support those labels. “A pleading that offers ‘labels or conclusions’ or
‘a formulaic recitation of the elements of a cause of action will not do.’”12 Tomko does
not allege the Defendants benefitted personally or financially from any of their actions.
Indeed, the relocation of the sewer line would benefit the Borough’s constituents, not the
Defendants.
The closest Tomko comes to properly alleging self-dealing is the complaint’s
assertion that the Defendants are trying to compel him to privately fund the relocation of
a public sewer line. But again, this bare statement is not supported by any factual
allegations. Tomko alleges the Borough requested “detailed engineering” to show a
relocation of the sewer line. 13 But, as a 2008 agreement between Missionary Partners and
Eichenlaub, 385 F.3d at 286.
9
10
Id.11
App. 220–21.
12
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 555 (2007)).
13
App. 216.
4
Baldwin Borough attached to the complaint shows, Missionary Partners has
responsibilities related to the relocation of the sewer line. Tomko’s allegation that the
Defendants tied the granting of his permit to the sewer line relocation is, at most, a bad-
faith violation of state law. The complaint reflects this through its repeated references to
Baldwin Borough exceeding its authority and lacking statutory authority. We have held
that such a violation does not shock the conscience. 14
The District Court cited a host of nonbinding decisions to support its holding that
the Defendants’ behavior does not shock the conscience. Tomko attempts to distinguish
only three. Although we do not rely on these cases, even if we did, Tomko’s efforts
would still fail. DB Enterprise Developers & Builders, Inc. v. Micozzie merely repeats the
rule that conclusory assertions of corruption and self-dealing will not withstand scrutiny
without facts to support them. 15 As explained above, Tomko does not allege facts to
support his conclusory statements. Next, Tomko argues that the Defendants’ actions
shock the conscience because they are more egregious than those in Shamrock Creek,
LLC v. Borough of Paramus and Strategic Environmental Partners, LLC v. Bucco. 16 As
previously discussed, the Defendants’ actions here may be improper or ill-advised, but
they are not egregious. Just because the Defendants’ behavior may have been worse than
14
See United Artists, 316 F.3d at 402.
15
394 F. App’x 916, 919 (3d Cir. 2010).
16
No. 12-2716, 2014 WL 4824353, at *5 (D.N.J. Sept. 24, 2014); 184 F. Supp. 3d
108, 129–31 (D.N.J. 2016).
5
in those cases does not make it egregious.
Tomko also argues that the District Court erred in dismissing his claim for civil
conspiracy. To state a § 1983 civil conspiracy claim, Tomko must allege that “persons
acting under color of state law conspired to deprive him of a federally protected right.” 17
Because he has not alleged a deprivation of a constitutional or federal statutory right or
privilege, there can be no civil conspiracy to commit an unlawful act under § 1983. 18
We conclude that the District Court appropriately granted the motion to dismiss,
and we will affirm.
17
Ridgewood Bd. of Educ. v. N.E. ex rel. M.E., 172 F.3d 238, 254 (3d Cir. 1999),
superseded by statute on other grounds, Individuals with Disabilities Education
Improvement Act of 2004, Pub. L. No. 108–446, 118 Stat. 264, as recognized in P.P. ex
rel. Michael P. v. W. Chester Area Sch. Dist., 585 F.3d 727 (3d Cir. 2009).
18
See Black v. Montgomery Cnty., 835 F.3d 358, 372 n.14 (3d Cir. 2016).
6