Miller v. Pocono Ranch Lands Property Owners Ass'n , 557 F. App'x 141 ( 2014 )


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  •                                                            NOT PRECEDENTIAL
    UNITED STATES COURT OF APPEALS
    FOR THE THIRD CIRCUIT
    ___________
    No. 13-1477
    ___________
    MARLENE S. MILLER
    v.
    POCONO RANCH LANDS PROPERTY OWNERS ASSOCIATION INC., and its
    President; KATHLEEN SIMONCIC, and its Treasurer and Member; ROY
    BORGFIELD, and its board member and its Secretary; PAUL D. MENDITTO, and its
    Community Manager; DAVID CAVANAUGH; LEHMAN TOWNSHIP PLANNING
    COMMISSION, and its Chairman; RICHARD C. VOLLMER, in their official capacity
    only
    Marlene S. Miller, and
    *Maria Grusha-Manta, a/k/a Mary Motidai Goriah,
    Appellants
    *(Pursuant to F.R.A.P. 12(a))
    ____________________________________
    On Appeal from the United States District Court
    for the Middle District of Pennsylvania
    (D.C. Civil Action No. 3-11-cv-00317)
    District Judge: Honorable Joel H. Slomsky
    ____________________________________
    Submitted Pursuant to Third Circuit LAR 34.1(a)
    February 20, 2014
    Before: FUENTES, GREENBERG and VAN ANTWERPEN, Circuit Judges
    (Opinion filed February 21, 2014)
    ___________
    OPINION
    ___________
    PER CURIAM
    Pro se appellant Marlene Miller appeals the District Court’s order dismissing her
    third amended complaint under Rule 12(b)(6) of the Federal Rules of Civil Procedure.
    We have jurisdiction under 
    28 U.S.C. § 1291
     and exercise a plenary standard of review.
    See Fleisher v. Standard Ins. Co., 
    679 F.3d 116
    , 120 (3d Cir. 2012). For the reasons set
    forth below, we will affirm the District Court’s judgment.
    This case concerns a land dispute. In 2010, Miller acquired a parcel of property
    from her aunt, Maria Grusha. That property is located within the Pocono Ranch Lands
    Property Owners Association Inc. (“the Association”). Miller’s third amended complaint
    — the operative complaint in this appeal — alleges that the Association, the individuals
    who control it, and certain Lehman Township officials (collectively, “the defendants”)
    have acted improperly in the following ways: (1) they have failed to recognize that
    Miller’s property is deeded commercial, not residential; (2) they have sent fee and
    assessment bills to her1; (3) they denied her request for a variance that would have
    allowed her to use the property for commercial purposes; and (4) by placing an easement
    on the property and refusing to allow her to use the property for commercial purposes,
    they have effectively taken the property. Based on these allegations, she asserted
    numerous federal and state claims.
    The defendants filed motions to dismiss the third amended complaint pursuant to
    Fed. R. Civ. P. 12(b)(6), and in a thorough report and recommendation, a Magistrate
    1
    It appears that the Association charges property owners for items like road maintenance
    2
    Judge recommended that the District Court grant those motions and dismiss the
    complaint. The District Court adopted that report and recommendation and dismissed the
    action. Miller then filed a timely notice of appeal to this Court.
    We agree in full with the District Court’s disposition of this case. As an initial
    matter, the Court was correct to hold that Miller, as a pro se plaintiff, is not permitted to
    represent Grusha in this action. See Lazaridis v. Wehmer, 
    591 F.3d 666
    , 672 (3d Cir.
    2010). This same prohibition prevents her from representing her late uncle’s estate. See
    Malone v. Nielson, 
    474 F.3d 934
    , 937 (7th Cir. 2007) (per curiam). The District Court
    thus did not err in dismissing those claims that Miller purported to assert on behalf of
    others, although we stress that the dismissal as to these claims is without prejudice. See,
    e.g., Berrios v. N.Y.C. Hous. Auth., 
    564 F.3d 130
    , 135 (2d Cir. 2009). Further, since
    Grusha herself did not participate in the action before the District Court, she is not a
    proper party in this appeal. See United States v. Stoerr, 
    695 F.3d 271
    , 275-76 (3d Cir.
    2012). Accordingly, we will consider only Miller’s claims.
    Miller first argues that the defendants violated her rights under 
    42 U.S.C. §§ 1981
    and 1982. However, as the District Court noted, these statutes outlaw racial
    discrimination. See Brown v. Philip Morris Inc., 
    250 F.3d 789
    , 797 (3d Cir. 2001).
    Miller has not alleged that she is a racial minority or that the defendants’ alleged
    misconduct was racially motivated. Therefore, the District Court properly dismissed
    these claims. See 
    id.
    and public-safety services.
    3
    Miller’s claim under 
    42 U.S.C. § 1985
    (3) suffers from a similar infirmity. To state
    a claim under § 1985(3), the “claimant must allege some racial, or perhaps otherwise
    class-based, invidiously discriminatory animus behind the conspirators’ action.” Farber
    v. City of Paterson, 
    440 F.3d 131
    , 135 (3d Cir. 2006) (quotation marks omitted). As
    noted above, Miller has not alleged racial discrimination; further, she has not identified
    any other class to which she belongs that is cognizable under § 1985. See id. at 136.
    Thus, the District Court was also correct to dismiss this claim.
    Miller further asserts several claims under 
    42 U.S.C. § 1983
    ; as the District Court
    concluded, none of these claims has merit. First, Miller contends that the defendants, in
    denying her request for a variance, violated her procedural-due-process rights. To state a
    procedural-due-process claim, Miller must show, among other things, that the state
    “procedures available to [her] did not provide due process of law.” Hill v. Borough of
    Kutztown, 
    455 F.3d 225
    , 234 (3d Cir. 2006) (quotation marks omitted). However,
    Pennsylvania affords a full judicial mechanism for an aggrieved landowner to challenge
    the decision to deny a variance. See, e.g., DeFilippo v. Cranberry Twp. Bd. of
    Supervisors, 
    49 A.3d 939
    , 941-42 (Pa. Commw. Ct. 2012). We have held that these
    procedures provide due process, which is fatal to Miller’s claim. See Rogin v. Bensalem
    Twp., 
    616 F.2d 680
    , 694-95 (3d Cir. 1980).
    Miller also contends that the defendants violated her substantive-due-process
    rights. This claim likewise fails as a matter of law. To state a substantive-due-process
    claim in a land-use case, the plaintiff must show that the defendants’ conduct “shocks the
    conscience.” Eichenlaub v. Twp. of Indiana, 
    385 F.3d 274
    , 285 (3d Cir. 2004). We have
    4
    previously concluded that claims similar to Miller’s — such as that the defendants
    applied zoning requirements unfairly, pursued unnecessary enforcement actions, and
    delayed permits and approvals — failed to satisfy this standard. See 
    id. at 286
    . Thus, we
    will affirm the District Court’s dismissal of this claim.
    In Miller’s final § 1983 claim, she argues that, by placing a restrictive easement on
    the property and refusing to allow her to use the property for commercial purposes, the
    defendants have taken the property under the Fifth Amendment. However, “[a] plaintiff
    must first seek compensation through the procedures the State has provided for doing so
    before asserting a federal takings claim.” Chainey v. Street, 
    523 F.3d 200
    , 222 (3d Cir.
    2008). Miller has admittedly not done so, and as a consequence, this claim is not yet ripe
    for our review. See 
    id. at 222-23
    .
    Finally, Miller claims that the defendants violated the civil RICO statute. See 
    18 U.S.C. § 1962
    (c). In order to state a RICO claim, Miller must plausibly allege the
    following elements: “(1) conduct (2) of an enterprise (3) through a pattern (4) of
    racketeering activity.” Sedima, S.P.R.L. v. Imrex Co., 
    473 U.S. 479
    , 496 (1985)
    (footnote omitted). In order to have standing to litigate a civil RICO claim, a plaintiff
    must show that she suffered an injury to her business or property and that the injury was
    proximately caused by the defendant’s racketeering activities. See, e.g., Maio v. Aetna,
    Inc., 
    221 F.3d 472
    , 483 (3d Cir. 2000).
    There are a few problems with Miller’s RICO claim. First, her allegations
    concerning the defendants’ alleged misconduct are vague and conclusory, and are simply
    insufficient to state a valid RICO claim. See, e.g., Lum v. Bank of Am., 
    361 F.3d 217
    ,
    5
    223-24 (3d Cir. 2004). Moreover, Miller has not pleaded that she suffered the requisite
    injury to her business or property. While Miller alleges that Grusha was injured, a
    plaintiff cannot sustain a RICO claim based on “harm flowing merely from the
    misfortunes visited upon a third person by the defendant’s acts.” Brokerage Concepts,
    Inc. v. U.S. Healthcare, Inc., 
    140 F.3d 494
    , 521 (3d Cir. 1998) (quotation marks omitted).
    Further, although Miller contends that the defendants committed mail or wire fraud by
    sending assessment bills to her, Miller also asserts that she knew, even before she owned
    the property, that these bills were unwarranted; it does not appear that she has ever made
    any payment on them. Thus, Miller cannot establish either that the defendants committed
    fraud or that she suffered an injury. See Ideal Dairy Farms, Inc. v. John Labatt, Ltd., 
    90 F.3d 737
    , 746-47 (3d Cir. 1996).2
    Appellees, for their part, ask us to impose damages and costs for the filing of a
    frivolous appeal under Federal Rule of Appellate Procedure 38. An appeal is deemed
    frivolous if it is “wholly without merit.” Quiroga v. Hasbro, Inc., 
    943 F.2d 346
    , 347 (3d
    Cir. 1991). While Rule 38 damages might be appropriate if Miller had filed this appeal
    with the aid of counsel, “an unrepresented litigant should not be punished with damages
    for [her] failure to appreciate legal subtleties in legal arguments.” Beam v. Bauer, 
    383 F.3d 106
    , 109 (3d Cir. 2004). Accordingly, we will not impose damages against Miller;
    we will, however, tax costs against her under Federal Rule of Appellate Procedure
    39(a)(2).
    2
    Having dismissed Miller’s federal claims, the District Court acted within its discretion
    in declining to exercise supplemental jurisdiction over her state-law claims. See 28
    6
    We will therefore affirm the District Court’s judgment. Appellees’ Rule 38
    motion is denied. Miller’s request for a jury trial is denied.
    U.S.C. § 1367(c)(3); Figueroa v. Buccaneer Hotel Inc., 
    188 F.3d 172
    , 181 (3d Cir. 1999).
    7
    

Document Info

Docket Number: 13-1477

Citation Numbers: 557 F. App'x 141

Judges: Fuentes, Greenberg, Per Curiam, Van Antwerpen

Filed Date: 2/21/2014

Precedential Status: Non-Precedential

Modified Date: 8/31/2023

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roberta-farber-v-city-of-paterson-jose-torres-elieser-burgos-marge , 440 F.3d 131 ( 2006 )

Keith A. Hill v. Borough of Kutztown and Gennaro Marino, ... , 455 F.3d 225 ( 2006 )

catherine-figueroa-v-buccaneer-hotel-inc-companion-assurance-company , 188 F.3d 172 ( 1999 )

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Fleisher v. Standard Insurance , 679 F.3d 116 ( 2012 )

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joseph-maio-jo-ann-maio-and-gary-bender-on-behalf-of-themselves-and-all , 221 F.3d 472 ( 2000 )

Sedima, S. P. R. L. v. Imrex Co. , 105 S. Ct. 3275 ( 1985 )

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