Zhaojin Ke v. Philadelphia Parking Authority ( 2020 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 20-2131
__________
ZHAOJIN DAVID KE,
Appellant
v.
PHILADELPHIA PARKING AUTHORITY
____________________________________
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Civil Action No. 2-19-cv-01001)
District Judge: Honorable Paul S. Diamond
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
December 4, 2020
Before: GREENAWAY, JR., KRAUSE and BIBAS, Circuit Judges
(Opinion filed: December 18, 2020)
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OPINION *
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PER CURIAM
Zhaojin David Ke appeals pro se from the District Court’s order dismissing his
*
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
second amended complaint in this civil rights action. For the following reasons, we will
affirm.
I.
Because we write primarily for the benefit of the parties, we will recite only the
facts necessary to our discussion. In March 2019, Ke filed a complaint against the
Philadelphia Parking Authority (PPA) and its Executive Director, Scott Petri. In the
complaint, which he twice amended, Ke alleged that the defendants booted his car
because of his failure to pay three parking tickets that, according to Ke, he never
received. Ke further alleged that when he called the PPA to come remove the boot, an
employee arrived at the scene and told him that he must pay $547 to have the boot
removed. Ke stated that he requested a hearing to contest the tickets, but the driver told
him that “it was too late for that.” 2nd Am. Compl. ¶ 15, ECF No. 21. Ke paid the fee.
Ke later went to a PPA office to inquire into the parking tickets. An employee
there provided him with a printout of the three tickets and, according to Ke, told him that
they “must have been sent to the wrong address.” Id. ¶ 32.
Based on these allegations, Ke claimed that the defendants violated: (1) his
Fourteenth Amendment right to procedural due process by failing to provide sufficient
pre-immobilization notice of the parking tickets; and (2) his Eighth Amendment right to
be free of excessive fines by imposing $547 worth of fines and fees. Ke also asserted
several state-law claims.
2
The defendants moved to dismiss the second amended complaint on the ground
that Ke failed to state a claim upon which relief could be granted. See Fed. R. Civ. P.
12(b)(6). 1 The District Court agreed, granted the motion, and dismissed the second
amended complaint. Ke moved the District Court to reconsider its decision, but the
District Court denied his request. 2 Ke appeals.
II.
We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291. 3 We exercise
plenary review over a district court’s order granting a motion to dismiss pursuant to Rule
12(b)(6). See Barefoot Architect, Inc. v. Bunge, 632 F.3d 822, 826 (3d Cir. 2011). To
survive a motion to dismiss, a complaint “must contain sufficient factual matter, accepted
as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009) (citation and internal quotation marks omitted). We accept all factual
1
The defendants previously moved to dismiss Ke’s first amended complaint. The
District Court granted the motion but allowed Ke further leave to amend.
2
In his motion for reconsideration, Ke asked the District Court to provide legal analysis
explaining its dismissal order. It appears that, in making this request, Ke was unaware of
the analysis provided by the District Court in the order docketed at ECF No. 25. Ke
seems to have later obtained a copy of that order, as he discusses it in his appellate brief.
In any event, Ke does not challenge the District Court’s order denying his motion for
reconsideration.
3
Ke’s timely appeal from the order denying his timely motion for reconsideration brings
up the earlier judgment for review. See Long v. Atl. City Police Dep’t, 670 F.3d 436,
446 n.20 (3d Cir. 2012).
3
allegations in the complaint as true and construe those facts in the light most favorable to
the plaintiff. Fleisher v. Standard Ins. Co., 679 F.3d 116, 120 (3d Cir. 2012).
III.
We agree with the District Court’s disposition of this case and need not repeat its
reasoning here. In short, the District Court correctly concluded that Ke failed to state a
due process claim because he received all the notice and process he was due; he received
a notice on his windshield with a number to call for information about the boot, and he
had the opportunity to contest the fine and underlying tickets in a post-deprivation
hearing, but he chose not to. 4 See Hill v. Borough of Kutztown, 455 F.3d 225, 233–34
(3d Cir. 2006); see also Kovler v. Bureau of Admin. Adjudication, 6 A.3d 1060, 1062–64
(Pa. Commw. Ct. 2010) (holding that Philadelphia’s procedures for adjudicating parking
violations satisfy the due process requirements of both the United States and the
Pennsylvania Constitutions). The District Court also correctly concluded that Ke failed
to state an Eighth Amendment violation because he did not allege facts that would show
that the disputed fines and fees were grossly disproportional to the gravity of his parking
offenses. See United States v. Bajakajian, 524 U.S. 321, 334 (1998). Lastly, given the
District Court’s dismissal of Ke’s federal claims, the District Court acted within its
discretion in declining to exercise supplemental jurisdiction over the state-law claims.
See 28 U.S.C. § 1367(c); Kach v. Hose, 589 F.3d 626, 650 (3d Cir. 2009).
4
This is so despite Ke’s allegations that PPA employees misled him and failed to comply
with their procedures. See Tate v. Dist. of Columbia, 627 F.3d 904, 908 (D.C. Cir.
4
2010).
5
IV.
We have considered Ke’s arguments on appeal and conclude that they are
meritless. Accordingly, we will affirm the District Court’s judgment.
6