Timothy Parr v. Frank Colantonio

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 19-2967
___________
TIMOTHY DAVID PARR; JOHN MICHAELS ‘SIX TRAILERS’ PROPERTY
OWNERS
v.
FRANK COLANTONIO, ELECTED CONSTABLE FOR THE WILLOW
GROVE PA. MAGISTERIAL “DISTRICT COURT”; ERNIE M. GUSTAFSON;
GAIL E. GUSTAFSON, AD HOC CONSTABLE’S DEPUTIES
Timothy David Parr,
Appellant
____________________________________
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Civil Action No. 2-19-cv-01930)
District Judge: Honorable Mitchell S. Goldberg
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
September 25, 2020
Before: KRAUSE, MATEY, and ROTH, Circuit Judges
(Opinion filed: February 3, 2021)
_________
OPINION*
_________
*
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 Timothy David Parr appeals from the District Court’s dismissal of
his civil rights complaint, as well as the subsequent denial of reconsideration. For the
reasons that follow, we will affirm the District Court’s judgment with one modification.
Gail Gustafson owns a commercial lot in Hatboro, Pennsylvania.1 Gustafson
leases access to and use of the lot to various tenants, including Parr, who maintained six
storage trailers there with his business partner, John Michaels. In 2018, Gustafson filed a
landlord-tenant action in Montgomery County Magisterial District Court seeking back
rent and eviction of Parr from her property. Judgment was entered for Gustafson, and
Parr appealed to the Montgomery County Court of Common Pleas.
In May 2019, Parr and Michaels filed a pro se civil action in the District Court
against Constable Frank Colantonio and the Gustafsons. The complaint alleged civil
rights violations under 42 U.S.C. § 1983 resulting from Colantonio’s actions in
effectuating the Montgomery County court’s Order for Possession. The complaint also
alleged that Colantonio had illegally blocked Parr’s and Michaels’ access to their trailers.
They claimed that the actions of Colantonio and the Gustafsons amounted to the unlawful
conversion of their property under color of state law. The District Court dismissed
Michaels’ claims without prejudice for failure to prosecute and dismissed Parr’s claims
1
Gustafson’s husband and former co-owner of the lot, Ernie Gustafson, is now deceased.
2
pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii). Parr and Michaels filed a timely motion for
reconsideration, which the District Court denied. Parr timely appealed.2
We have jurisdiction under 28 U.S.C. § 1291. Our review encompasses the order
rejecting Parr’s complaint, as well as the order denying the motion for reconsideration.
See LeBoon v. Lancaster Jewish Cmty. Ctr. Ass’n, 503 F.3d 217, 225 n.6 (3d Cir. 2007)
(noting that, generally, a timely appeal from the denial of a timely motion for
reconsideration brings up the underlying judgment for review). We exercise plenary
review over the District Court’s sua sponte dismissal of Parr’s complaint, see Allah v.
Seiverling, 229 F.3d 220, 223 (3d Cir. 2000), and we review for abuse of discretion the
denial of a motion for reconsideration that seeks leave to file an amended complaint, Jang
v. Boston Scientific Scimed, Inc., 729 F.3d 357, 368 (3d Cir. 2013). We may affirm on
any ground supported by the record. See Munroe v. Cent. Bucks Sch. Dist., 805 F.3d
454, 469 (3d Cir. 2015).
We conclude that the District Court’s dismissal of Parr’s complaint was proper.
First, Parr failed to state a colorable constitutional claim against the Gustafsons. To
establish a claim under § 1983, a plaintiff must show that he was deprived of a federal
right by a state actor. Kach v. Hose, 589 F.3d 626, 646 (3d Cir. 2009). As the District
Court addressed, neither of the Gustafsons is a state actor for § 1983 purposes. See
Leshko v. Servis, 423 F.3d 337, 339 (3d Cir. 2005) (explaining that private actors are
2
Michaels did not file a notice of appeal. Accordingly, we lack jurisdiction to review his
claims. See Fed. R. App. P. 3(c).
3
state actors under § 1983 only where there is “such a close nexus between the State and
the challenged action that seemingly private behavior may be fairly treated as that of the
State itself”) (citations and quotation marks omitted); see also Mem., ECF No. 8 at 4–5
(determining that utilizing state procedures for eviction, calling the police, or attempting
to perform a citizen’s arrest do not render a private individual a state actor). Parr’s
conclusory assertion that the Gustafsons were “ad hoc deputies” of Colantonio, Parr Br.
at 19, is not enough to state a constitutional claim against them, see Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555–56 (2007) (holding that conclusory allegations that the
defendants acted unlawfully were insufficient to state a claim).
The District Court dismissed Parr’s claims against Colantonio without prejudice
based on abstention principles from Younger v. Harris, 401 U.S. 37 (1971). The Court
concluded that abstention was appropriate because “(1) there are ongoing state
proceedings that are judicial in nature; (2) the state proceedings implicate important state
interests; and (3) the state proceedings provide an adequate opportunity to raise the
federal claims.” Mem., ECF No. 8 at 6. These factors were first set forth in Middlesex
Cnty. Ethics Committee v. Garden State Bar Association, 457 U.S. 423, 432 (1982).
However, in Sprint Communications, Inc. v. Jacobs, 571 U.S. 69 (2013), the
Supreme Court “narrowed Younger’s domain.” Malhan v. Sec’y U.S. Dep’t of State, 938
F.3d 453, 462 (3d Cir. 2019). “The Court explained—and we have stressed several times
since—that the ‘three Middlesex conditions’ are no longer the test for Younger
abstention.” Id. (quoting Sprint, 571 U.S. at 81). Rather, before looking to the
4
Middlesex factors, courts must first analyze whether the parallel state action falls within
one of “three exceptional categories”: (1) criminal prosecutions, (2) “certain civil
enforcement proceedings,” and (3) “civil proceedings involving certain orders uniquely
in furtherance of the state courts’ ability to perform their judicial functions.” Sprint, 571
U.S. at 78 (quotation marks, alteration omitted). Here, the parallel state proceeding—an
ordinary eviction action in the Court of Common Pleas—does not fit into any of the three
categories identified in Sprint.3 Therefore, abstention was not proper.
Nonetheless, the District Court’s dismissal of Parr’s claims against Colantonio
was appropriate. Colantonio argues, and we agree, that Parr failed to state a viable claim
against him. Procedural due process guarantees that the state will not deprive an
individual of a protected interest in property without due process of law, Parratt v.
Taylor, 451 U.S. 527, 537 (1981), overruled on other grounds by Daniels v. Williams,
474 U.S. 327 (1986), but the Supreme Court has held that meaningful post-deprivation
3
Colantonio argues that the state action falls under the third category: “civil proceedings
involving certain orders uniquely in furtherance of the state courts’ ability to perform
their judicial functions.” We disagree. Examples of cases that fall under the third
category include those involving a state court’s civil contempt order, a state court’s
requirement about posting bond pending appeal, and a state court’s process to determine
when recusal of a judge or justice is appropriate. See New Orleans Pub. Serv., Inc. v.
Council of City of New Orleans, 491 U.S. 350, 368 (1989) (collecting cases); Aaron v.
O’Connor, 914 F.3d 1010, 1017 (6th Cir. 2019) (recusal process). Unlike these orders, a
possession order arising from a commonplace eviction action does not “lie[] at the core of
the administration of a State’s judicial system.” Juidice v. Vail, 430 U.S. 327, 335
(1977); see also Logan v. U.S. Bank Nat. Ass’n, 722 F.3d 1163, 1167 (9th Cir. 2013)
(explaining that the third category of cases under Sprint “is not an invitation to abstain
simply because a suit implicates a state law, even one involving a traditional state
concern,” and that “the Supreme Court has [not] held Younger to apply generally to
ordinary civil litigation”) (citation omitted).
5
remedies provide sufficient due process for negligent deprivations of property, Parratt,
451 U.S. at 543, and intentional deprivations of property, Hudson v. Palmer, 468 U.S.
517, 533 (1984). The state courts’ appellate procedure is a meaningful post-deprivation
remedy. See, e.g., Rogin v. Bensalem Twp., 616 F.2d 680, 695 (3d Cir. 1980) (holding
that a Pennsylvania zoning procedure was constitutionally adequate in part because it
allowed appeals to the Court of Common Pleas).
Here, Parr argues that Colantonio failed to serve him with the Order of Possession
and fabricated the return service filed with the Montgomery County court. However,
even if that were true, Parr had a meaningful post-deprivation remedy available to him in
the state courts’ appellate procedure, which Parr has utilized in appealing the
Montgomery County court’s Order of Possession to the Court of Common Pleas. Thus, it
cannot be said that Parr was denied due process.4
Finally, the District Court did not abuse its discretion in denying Parr and
Michaels’ reconsideration motion because it failed to raise a proper ground to alter or
amend the judgment. See Max’s Seafood Cafe ex rel. Lou-Ann, Inc. v. Quinteros, 176
F.3d 669, 677 (3d Cir. 1999).
4
To the extent that Parr argues that Colantonio committed an unconstitutional taking
when he blocked access to Parr’s and Michaels’ trailers, he failed to state a claim because
he did not allege, among other things, that Colantonio took the trailers for public use.
See Lingle v. Chevron U.S.A. Inc., 544 U.S. 528, 543 (2005) (“The [Takings] Clause
expressly requires compensation where government takes private property for public
use.”) (quotation marks omitted).
6
For the reasons given, Parr has shown no error in the District Court’s dismissal of
his complaint. However, because the defects in Parr’s claims against Colantonio are not
salvageable with amendment, they should have been dismissed with prejudice. See
Grayson v. Mayview State Hosp., 293 F.3d 103, 108 (3d Cir. 2002). Accordingly, we
modify the District Court’s order to dismiss those claims with prejudice. We will affirm
the District Court’s order as modified. Colantonio’s motion for leave to file a
supplemental appendix, which includes, among other things, public records and
documents from the District Court’s record, is granted. To the extent that the motion can
also be construed as a motion to expand the record pursuant to Federal Rule of Appellate
Procedure 10(e), it is denied as unnecessary.
7