MARINKOVIC v. BATTAGLIA

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

MEL MARINKOVIC, )

)

Plaintiff, ) Case No. 1:14-cv-49 and

v. ) Case No. 2:18-cv-388

)

DAVID K. BATTAGLIA, et al., )

)

Defendants. )

MEMORANDUM OPINION

In these consolidated civil actions, pro se Plaintiff Mel Marinkovic! sued several former

Armstrong County officials in connection with his attempts to purchase county-held properties

through a private bidding process. Pending before the Court in Civil Action 1:14-cv-49 is the

Defendants’ motion for summary judgment and Plaintiffs counter-motions to reopen discovery

and to strike Defendants’ exhibits. Pending in Civil Action No. 2:18-cv-388 is Defendants’

motion to dismiss Plaintiff's claims, pursuant to Federal Rules of Civil Procedure 12(b)(5) and

12(b)(6).

For the reasons that follow, Defendants’ motion for summary judgment will be granted,

and Plaintiffs motions to reopen discovery and to strike exhibits will be denied. Further, the

claims in Civil Action No. 2:18-cv-388 will be dismissed without leave to amend.

' Plaintiff is a frequent litigator in the Western District of Pennsylvania and elsewhere, having

filed over 70 lawsuits in other judicial districts as well as vexatious litigation in this judicial

district. See Marin v. La Paloma Healthcare Ctr., No. 1:11CV230, 2014 WL 4828713, at *1 n.1

(W.D. Pa. Sept. 29, 2014), affd, 636 F. App'x 586 (3d Cir. 2016) (discussing Plaintiff's litigation

history).

I. INTRODUCTION

Between 2011 to 2013 Plaintiff made inquiries to the Armstrong County Treasurer’s

Office about the process for buying county-held residential properties through means other than

public auctions. Plaintiff claims he was informed about a direct, confidential private bid process

and, thereafter, he visited and inspected dozens of properties and eventually made offers to buy

several properties. He alleges that, despite being told by the Tax Claim Bureau staff that there

were no competing bids on these properties, his efforts to acquire them were stymied in each

case because of other buyers stepping forward at the last minute to outbid him. According to

Plaintiff, this occurred because the County Tax Claim Bureau staff informed other government

officials of Plaintiff’s offers so that these insiders could then secretly make higher bids.

Eventually, Plaintiff wrote a letter to the Armstrong County Commissioners complaining of this

process, but the process allegedly continued until the County Commissioners decided to end the

private sale process entirely.

Plaintiff initially brought a litany of constitutional and state-law claims against

Armstrong County and three of its former Commissioners: David K. Battaglia, Robert T. Bower,

and Richard L. Fink (at times hereafter, the “Defendant Commissioners”). ECF No. 31. By

Memorandum Opinion and Order dated July 8, 2016, the Court dismissed all claims against the

County and all but two claims against the Defendant Commissioners. As a result, the only

remaining claims are: (a) a First Amendment claim predicated on the theory that Defendants

unlawfully retaliated against Plaintiff by cancelling his outstanding bids on certain properties in

response to his constitutionally-protected petitioning activity; and (b) a “class of one” equal

protection claim premised upon an allegation that Plaintiff was the only individual bidding on

properties held by the Tax Claim Bureau who was not permitted to see the amount of other

buyers’ bids.

The pleadings closed on September 23, 2016, and discovery then proceeded through

April 12, 2018. On September 17, 2018, the undersigned became the presiding district judge in

these cases.

On January 11, 2019, Defendants filed their motion for summary judgment relative to the

two remaining claims in Civil Action No. 1:14-cv-49. ECF No. 165. Defendants’ motion was

accompanied by a Concise Statement of Material Facts in support of their motion, ECF No. 167,

as well as a memorandum of law, ECF No. 166, and an appendix of exhibits, ECF No. 168.

On April 1, 2019, after receiving a six-week extension of time for responding to the

Defendants’ motion, Plaintiff filed his “Opposition to Motion for Summary Judgment and

Motion to Strike Defendants’ Exhibits,” ECF No.171, along with a “Motion to Reopen

Discovery and Motion to File Rule 56(f) Affidavit under Seal,” ECF No. 172. Appended to the

former document was a “Statement of Material Facts in Opposition to Summary Judgment,” EC

No. 171-1, which is in the nature of a declaration by Plaintiff. Despite this Court having

expressly advised Plaintiff that his filings must comply with Federal Rule of Civil Procedure 56

and the local rules of this Court, Plaintiff's oppositional papers fail to do so. In particular,

Plaintiff did not adhere to Local Rule 56’s requirement that he submit:

A separately filed concise statement, which responds to each numbered paragraph

in the moving party's Concise Statement of Material Facts by:

a. admitting or denying whether each fact contained in the moving

party's Concise Statement of Material Facts is undisputed and/or

material;

b. setting forth the basis for the denial if any fact contained in the

moving party's Concise Statement of Material Facts is not admitted

in its entirety (as to whether it is undisputed or material), with

appropriate reference to the record (See LCvR 56.B.1 for

instructions regarding format and annotation); and

c. setting forth in separately numbered paragraphs any other

material facts that are allegedly at issue, and/or that the opposing

party asserts are necessary for the Court to determine the motion

for summary judgment;

LCvR 56(C)(1). Asa result, any alleged material facts set forth in Defendants’ Concise

Statement of Material Facts, which are claimed to be undisputed, will be deemed admitted for

purposes of this memorandum opinion, except to the extent they are specifically denied or

otherwise competently controverted by Plaintiff's non-conforming Statement of Material Facts.

LCvR 65(E).?

II. FACTUAL BACKGROUND

Between 2013 and 2014, Plaintiff submitted bids to the Armstrong County Tax Claim

Bureau relative to five properties that the Bureau was holding in its repository. Def's’ Concise

Statement of Material Facts (““DCSMF”), ECF No. 167, at 1. All bids submitted to the Tax

Claim Bureau were subject to the review and approval of the County Tax Assessor. Id. §2. A

minimum bid of $400.00 was required. Jd. (3. Pursuant to Pennsylvania law, upon receipt of a

bid, the Tax Claim Bureau was obligated to seek the consent of the local taxing bodies to the sale

of the property to that bidder. Id. 32 (citing 72 Pa. Stat. §5860.627). Accordingly, before it

accepted an offer on any property, the Tax Claim Bureau provided notice of the bid to the local

taxing entities. Id. 433. The amount of the bid was not disclosed. Id. Instead, the Tax Claim

Bureau advised the local taxing authorities only of the fact of a bid and the identity of the

purchaser. Jd. 934. The Tax Claim Bureau also did not disclose the amount of any bids,

2 For the reasons discussed in more detail, infra, Plaintiff's motion to reopen discovery will be

denied.

including the amounts of Plaintiff’s bids, to other buyers. 7d. 935. As Armstrong County

Commissioners, the Defendants’ only involvement in the sale of properties held in the Tax Clai

Bureau repository was to provide final approval of the sale following the County Assessor’s

acceptance of an offer. Jd. 931.

On April 24, 2013, Plaintiff submitted a private bid for the “Borland” property, control

number 18-0-010292, in the minimum amount of $400.00 DCSMF 44. The County Assessor

rejected Plaintiffs offer on the “Borland” property because a higher bid was submitted by

another person. Jd. {5. The Tax Claim Bureau advised Plaintiff that the Assessor had rejected

his bid by correspondence dated June 11, 2013. Id. 46.

On August 6, 2013, Plaintiff submitted a bid for the minimum amount of $400.00 on the

“Metro Housing, LLC” property, control number 01-0-000160. DCSMF 47. The County Tax

Assessor rejected Plaintiff's bid on October 4, 2013, due to the fact that the Assessor had

received a higher offer of $1,500.00 on August 22, 2013. Jd. §§8-9. Defendants Bowers and

Fink, acting as County Commissioners, approved the sale of the Metro Housing, LLC property to

the higher bidder. Jd. 410.

On November 19, 2013, Plaintiff submitted a minimum bid of $400.00 and up to

$1,000.00 on the “Imagine America, LLC” property, control number 14-0-007328. DCSMF

411. The Assessor noted that this property was worth $1,000.00. Id. 12.

That same day, Plaintiff submitted a minimum bid of $400.00 and up to $1,000.00 on the

“Bell” property, control number 14-0-007591. DCSMF 419. Another individual, Michael

Zaffuto, submitted a competing bid for that same property on December 13, 2013 in the amount

of $2,000.00. Id. §20.

On December 23, 2013, Plaintiff served Defendants with a copy of a draft complaint

against the County and correspondence advising that Plaintiff perceived his civil rights had been

violated in connection with his submissions of bids to the Tax Claim Bureau. DCSMF 24.

Defendants acknowledge receipt of these documents on or around that same date. Jd. 425.

On January 17, 2014, the County Tax Assessor rejected Plaintiff's bid relative to the Bell

property and accepted the higher offer of Michael Zaffuto. DCSMF 421. All three Defendant

Commissioners later approved the sale of the “Bell” property to Zaffuto. Jd. §22. Via

correspondence dated January 21, 2014, Plaintiff was informed of the fact that the County had

accepted a higher bid on the property in lieu of his own. Id. §23.

With the approval of the Tax Claim Bureau’s Director, and upon the recommendation of

the county solicitor, the “Imagine America, LLC” property was awarded to Plaintiff on January

22, 2014, per his bid of $1,000.00. DCSMF 415. The County Board of Commissioners, through

Defendants Bower and Fink, approved the sale of the “Imagine America, LLC” property, to

Plaintiff. Jd. 16. Plaintiff was informed of the Board’s approval of his bid via correspondence

dated February 5, 2014, and the sale was later consummated on or about July 19, 2014. Id. §§17-

18.

Meanwhile, on January 17, 2014, Plaintiff had submitted a bid on the “Hartzell” property,

control number 10-0-065394 for a minimum bid of $400.00 and up to $1,000.00. DCSMF 4/26.

The County Tax Assessor accepted the bid of $1,000.00 on February 4, 2014. Id. §27. The

Defendant Commissioners approved the sale of the “Hartzell” property to Plaintiff, and Plaintiff

was so notified by correspondence dated February 19, 2014. Jd. 9928-29. Plaintiff later advised

the Tax Claim Bureau that he would not be buying the “Hartzell” property. Jd. 30.

At some point in early 2014, the Tax Claim Bureau implemented a new procedure of

holding public auctions, rather than private paper bids, for the sale of properties held in the

repository. Defendants contend that this occurred in February 2014 and that the first public

auction was held on February 20, 2014. DCSMF 413. Plaintiff claims that, “[i]n the 3rd week o

January 2014” he was told by a member of the Tax Claim Bureau staff that the private bidding

process was being terminated as of the close of business that same day. ECF No. 171-1, 95.

Il. DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT [ECF No. 165]

A. Standard of Review

Under Rule 56 of the Federal Rules of Civil Procedure, summary judgment shall be

granted if the “movant shows that there is no genuine dispute as to any material fact and the

movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). A factual dispute is

genuine “if the evidence is such that a reasonable jury could return a verdict for the nonmoving

party.” Anderson y. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). In analyzing a motion under

Rule 56, the Court must construe the evidence and all reasonable inference arising therefrom in

the light most favorable to the non-movant. Scott v. Harris, 550 U.S. 372, 378 (2007).

B. Plaintiff's Motion to Strike Defendants’ Exhibits [ECF No.171]

Initially, the Court will address Plaintiff's challenges to Defendants’ exhibits. 3 See ECF

No. 171. Plaintiff asserts that the exhibits were filed in violation of the local rules of this Court

3 Though Plaintiff moves to “strike” the challenged exhibits, that form of relief is inopposite for

summary judgment purposes. Federal Rule of Civil Procedure 12(f) permits the court, in its

discretion, to “strike from a pleading an insufficient defense or any redundant, immaterial,

impertinent, or scandalous matter.” Fed. R. Civ. P. 12(f). Because the exhibits in question are

not “pleadings,” they are not subject to Rule 12(f). See Polite v. Dougherty Cnty. Sch. Sys., 314

F. App’x 180, 184 n.7 (11th Cir. 2008) (finding no error in the district court's denial of a motion

to strike an affidavit because “motions to strike are only appropriately addressed towards matters

contained in the pleadings; here, the affidavit was submitted as part of the motion for summary

and in violation of an order entered by Chief U.S. District Judge Mark R. Hornak, who

previously presided over this litigation. Plaintiff also argues that Defendants’ exhibits have not

been properly authenticated. Positing that the Defendants’ exhibits are thus “useless,” Plaintiff

reasons that the Defendants’ Concise Statement of Material Facts — which relies on those same

exhibits — is likewise “useless.” ECF No. 171 at 4. These objections lack merit and will be

overruled. .

Plaintiff's first argument is that Defendants were precluded, under the local rules of this

Court, from filing discovery answers in support of their Rule 56 motion. This line of argument

confuses the general rule against filing discovery materials, as set forth in Federal Rule of Civil

Procedure 5(d)(1) and Local Civil Rule 5.4, with the use of such materials in support of a

summary judgment motion, as contemplated by Federal Rule 56 and Local Rule 56. Asa

general proposition, litigants are not permitted to file discovery requests and responses with the

Court, except as necessary to decide a motion or as otherwise ordered by the Court. See Fed. R.

Civ. P. 5(d); LCvR 5.4(A)-(B). Consistent with this rule, Judge Hornak previously denied

Plaintiffs request to file discovery materials when the stated purpose was merely to demonstrate

service of same upon the Defendants. ECF No. 111 at 10-11; ECF No. 112. By contrast, both

Federal Rule 56 and Local Rule 56, expressly contemplate — and even require -- parties to file

discovery-related materials in support of, or in opposition to, a motion for summary judgment.

See Fed. R. Civ. P. 56(c)(1)(A); LCvR 56(B)(1) & (3); LCvR 56(C)(1) & (3). Defendants

therefore did not violate any rule or order of this Court in submitting the exhibits that are

judgment, which is not a pleading’); Bradfield v. Easterling, No. 12-1248, 2016 WL 1242593, at

*1 n.1 (W.D. Tenn. Mar. 29, 2016) (“While Federal Rule of Civil Procedure 12(f) authorizes a

motion to strike a “pleading” for various reasons, motions and affidavits are not pleadings.”)

(citing Fed. R. Civ. P. 7(a)). The Court will instead construe Plaintiff's motion as an objection

under Rule 56(c)(2).

included in their appendix. Moreover, Defendants did not need permission from this Court prior

to filing their exhibits, nor did they need Plaintiff's permission, as he seems to suggest.

Plaintiff's contention that the Defendants somehow violated his privacy rights by including his

discovery responses in their appendix is facially bogus.

Plaintiff's next argument is that Defendants’ exhibits are inadmissible because they were

not properly authenticated. Under the Federal Rules of Evidence, the proponent of an exhibit

“has an ‘incredibly slight’ burden” relative to authentication, “which may be satisfied by simply

producing evidence sufficient to support a finding that the item is what the proponent claims it

is.” Heyman vy. Citimortgage, Inc., No. 14-1680-KM-MAH, 2019 WL 2642655, at *16 (D.N.J.

June 27, 2019) (quoting Blunt v. Lower Merion Sch. Dist., 767 F.3d 247, 330 (3d Cir. 2014)

(citing Fed. R. Evid. 901(a))). This showing “may be accomplished by the testimony of a

witness with knowledge.” Cordance Corp. v. Amazon.com, Inc., 639 F. Supp. 2d 406, 432 (D.

Del. 2009),

Though it is not entirely clear, Plaintiff appears to be primarily challenging certain

records from the Tax Claim Bureau that were appended to the declaration of Rebecca Snyder.

See ECF No. 168 at 6-33. In her declaration, Ms. Snyder attests that:

* she is the current Director of the Armstrong County Tax Claims Bureau (41);

* prior to January 18, 2011, she held the position of Supervisor within the Tax Claims

Bureau (id.);

* in her capacity as Director of the Tax Claim Bureau, she handles the sale and

disposition of county properties held in the Tax Claim Bureau’s repository (id. 2);

* she was involved in the review and processing of Plaintiffs bids on repository

properties in 2013 and 2014 (id.);

* the information in her declaration is based upon her personal recollection of her

contacts with Plaintiff as well as the records maintained by the Bureau (id. §3);

* the records attached to her declaration are “[t]rue and correct copies of all pertinent Tax

Claim Bureau records,” and she personally “attest[s] to the authenticity of the same.”

(Id.)

Based on these averments, the records and exhibits appended to the declaration of Rebecca

Snyder are properly authenticated.

Defendants’ remaining exhibits consist of: (a) written discovery that was served or

answered by the parties, (b) Plaintiff's December 23, 2013 correspondence to the Defendants,

and (c) Plaintiff's draft complaint that was enclosed with the December 23, 2013

correspondence. ECF No. 168. Plaintiff's answers to discovery, his December 23, 2013

correspondence, and his accompanying draft complaint, are all admissible as admissions of a

party opponent. Fed. R. Evid. 802(d)(2). And any relevant evidence that may be set forth in the

Defendants’ responses to written discovery could be presented at a trial through witness

testimony. Thus, all of the evidence in Defendants’ exhibits is capable of being presented at trial

in an admissible form. Plaintiffs’ objection to the Court’s consideration of this evidence is

therefore overruled. See Heyman, 2019 WL 2642655, at *17 (“[W]hen evidence is not presented

in an admissible form in the context of a motion for summary judgment, but it may be presented

in an admissible form at trial, a court may still consider that evidence.”).

C. Plaintiff's Motion to Reopen the Record and Request to File a Rule

56 Affidavit Under Seal [ECF No, 172]

Next, the Court considers Plaintiff's motion to reopen the record, which he claims is

necessary so that he can “fairly address the defendants’ arguments about individual properties.”

ECF No. 171 at 2. Relatedly, Plaintiff requests leave to file a Rule 56(d) affidavit* under seal.

4 Although Plaintiff actually refers to a “Rule 56(f) affidavit,” the Rule has since been amended

and the relevant provision is now found under subsection (d).

10

Under the law of this circuit, district courts are “obliged to give a party opposing

summary judgment an adequate opportunity to obtain discovery.” Doe v. Abington Friends Sch.,

480 F.3d 252, 257 (3d Cir. 2007) (internal quotation marks and citation omitted). “This is

necessary because, by its very nature, the summary judgment process presupposes the existence

of an adequate record.” /d. (citations omitted). To that end, Federal Rule of Civil Procedure

56(d) provides that, “[i]f a nonmovant shows by affidavit or declaration that, for specified

reasons, it cannot present facts essential to justify its opposition, the court may: (1) defer

considering the motion or deny it; (2) allow time to obtain affidavits or declarations or to take

discovery; or (3) issue any other appropriate order.” In this way, the rule “provides for the just

adjudication of disputes by ensuring that parties are not ‘railroaded by a premature motion for

summary judgment.’” Pre-Settlement Fin., LLC v. Ellis, No. CV 18-6339-KM-CLW, 2019 WL

3543999, at *6 (D.N.J. Aug. 2, 2019) (quoting Celotex Corp. v. Catrett,477 U.S. 317, 326

(1986)).

A party seeking relief under Rule 56(d) must generally submit an affidavit explaining

what discovery is sought, how it would preclude summary judgment, and why it was not

previously obtained. Shelton v. Bledsoe, 775 F.3d 554, 568 (3d Cir. 2015). “District courts

usually grant properly filed Rule 56(f) motions as a matter of course,” especially “when there are

discovery requests outstanding or relevant facts are under the control of the moving party.” Doe,

480 F.3d at 257 (internal quotation marks and citations omitted). On the other hand, “the rule is

not intended to protect those who have had an opportunity to complete discovery, but who failed

to do so by their own lack of diligence.” Banks v. City of Phila., 309 F.R.D. 287, 292 (E.D. Pa.

2015); see In re Asbestos Prods. Liab. Litig. (No. VI), No. 09-69125, 2011 WL 1539883, at *2

(E.D. Pa. Feb. 22, 2011) (noting that Rule 56(d) motions may be denied where the movant “had

ample time and opportunity to conduct discovery, but failed to do so”) (internal quotation marks

and citation omitted).

In this case, Plaintiff has not demonstrated grounds for a discovery continuance under

Rule 56(d). To begin, Plaintiff has failed even to identify what specific information he seeks to

obtain or how it would preclude an entry of summary judgment in the Defendants’ favor.

Instead, Plaintiff states only that he needs to “investigate” the Defendants’ exhibits and that he

needs to file his Rule 56(d) affidavit under seal, because the affidavit would reveal litigation

strategies and privileged work product. Thus, it appears that Plaintiff is essentially seeking an in

camera review of an ex parte Rule 56(d) affidavit. Plaintiff cites no pertinent authority for

proceeding in this fashion, and the Court declines to do so.

Furthermore, Plaintiff has failed to articulate any cogent reason as to why he was

previously unable to obtain the information he now seeks. This is not a case in which the

defense has moved prematurely for a grant of summary judgment, prior to full development of

the evidentiary record. On the contrary: as of April 1, 2019, when Plaintiff filed his Rule 56(d)

motion, ECF No. 172, this civil action had been pending for more than five years. Discovery

opened in February 2017 and was initially scheduled to close on August 1, 2017. See ECF No.

64. As a result of robust discovery-related motions practice, however, and an unauthorized

interlocutory appeal (taken by Plaintiff), the exchange of discovery continued until at least April

of 2018. See, e.g, ECF Nos. 66, 80, 84, 108, 125, 127, 129, 135, 141, 144, 145. Notably,

Plaintiff does not contend that the Defendants’ exhibits constitute newly acquired evidence;

indeed, he acknowledges that he likely received them in March 2017. See ECF No. 172 at 3.

Plaintiffs only explanation for his belated discovery request is that Judge Hornak

‘supposedly mismanaged the discovery process and deprived him of an opportunity to obtain the

12

information he now seeks. According to Plaintiff, Judge Hornak, through an inadvertent

“oversight,” denied Plaintiff the right to obtain discovery relative to Defendants’ exhibits. ECF

No, 172 at 2. Plaintiff claims that he “did not move previously to correct that oversight before

Judge Hornak because the judge ruled one of plaintiff's actions was for purposes of delay, and

plaintiff sought to avoid more of those findings because several of the[m] can cause dismissal

and base a sanctions order [sic] and plaintiff is IFP and has no ability to pay attorneys’s [sic] fees

for the opposing party.” /d. Plaintiff further claims that, when the undersigned “asked in the

most recent hearing if the parties were waiting for more discovery ... , plaintiff answered no,

because Judge Hornak ended it so plaintiff has no right to continue discovery.” Jd.

In this Court’s view, the record does not plausibly support Plaintiffs assertion that he

was previously “denied” the relevant discovery he now seeks to obtain. The docket reflects that,

in March of 2017, Plaintiff filed a motion to compel Defendants to produce, inter alia, certain

information related to the private bidding process and/or the bids of other potential property

buyers. ECF Nos. 80, 81. Defendants took the position that: they had produced all the

information within their possession from the time they held office as County Commissioners,

they were not in possession of any discoverable information beyond what they had produced,

and, to the extent additional discoverable information was within the possession of Armstrong

County or the Tax Claim Bureau, Plaintiff was able to independently access such information

himself. ECF Nos. 86; ECF No. 81-2. Following a telephonic conference, Judge Hornak denied

Plaintiff's motion to compel without prejudice, presumably on the theory that Plaintiff could

pursue the information directly from the relevant third parties. Regardless of his motive,

however, it was not incumbent upon Judge Hornak to manage the filing of Plaintiff's discovery

motions. Because discovery is driven by the litigants in the first instance, it was incumbent upon

13

Plaintiff to diligently pursue any information he felt was relevant to his claims — including

information held by third parties, and seek intervention from the Court as necessary. Plaintiffs

assertion that he could not seek additional discovery because he feared being charged with delay,

or being sanctioned, strains credulity. As Defendants accurately observe, throughout the course

of this protracted litigation, Plaintiff has not hesitated to file motions that had the potential to

delay the proceedings. Finally, Plaintiff could have raised any good-faith concerns he had

regarding discovery when the undersigned became the presiding district judge approximately one

year ago.

In sum, Plaintiff has failed to demonstrate any basis under Rule 56(d) for granting a

continuance and reopening the record in this case. See Williams v. Market, Civ. No. 14-3098,

2016 WL 1558584, at *3 (D.N.J. April 18, 2016) (“Williams' vague and general statements that

she ‘cannot ... present facts essential to justify [her] opposition’ and that ‘there are genuine issues

as to material facts’ fail to fulfill the specificity required by Rule 56(d)) (citing Hancock Indus. v.

Schaeffer, 811 F.2d 225, 230 (3d Cir. 1987)). Accordingly, the Motion to Reopen Discovery and

Request to File [a] Rule 56[d] Affidavit Under Seal will be denied.

D. Analysis of Defendants’ Motion for Summary Judgment [ECF No. 165]

Plaintiff's claims are brought under 42 U.S.C. §1983, which “is not itself a source of

substantive rights,” but provides “a method for vindicating federal rights elsewhere conferred.”

Baker vy. McCollan, 443 U.S. 137, 144 n.3 (1979). To prevail under § 1983, a plaintiff must

prove that he suffered the deprivation of a right secured by the United States Constitution or

federal law by a person acting under color of state law. Mark v. Borough of Hatboro, 51 ¥.3d

1137, 1141 (d Cir. 1995). Further, the plaintiff must demonstrate each defendant’s personal

14

involvement in the alleged wrongdoing, because §1983 liability cannot be predicated on

principles of respondeat superior. See Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir.

1988).

In this case, it is not disputed that the named Defendants were acting under color of state

law at all relevant times. Therefore, the question becomes whether Plaintiff has produced

sufficient evidence that Defendants violated his federal rights. In this regard, Plaintiff has

alleged two violations. First, he claims that his First Amendment rights were violated when

Defendants retaliated against him for engaging in constitutionally protected petitioning activity

by “cancelling” his bids on certain properties. Second, Plaintiff claims that Defendants violated

his Fourteenth Amendment right to equal protection of the laws when they allowed other persons

bidding on Tax Claim Bureau properties to see his confidential bids while prohibiting him from

seeing theirs. Based upon the uncontroverted evidence of record, neither theory has merit.

1. Plaintiffs First Amendment Retaliation Claim

The First Amendment protects not only the right to petition the government for redress,

but also the right to be from retaliation resulting from such petitioning. See Hartman v. Moore,

547 U.S. 250, 256 (2006) (“Official reprisal for protected speech ‘offends the Constitution

[because] it threatens to inhibit exercise of the protected right.’”). To establish a First

Amendment retaliation claim based upon the Petition Clause, a plaintiff must prove (1) that the

First Amendment protected the activity in question, (2) that a government agent responded with

a retaliatory action, and (3) that the protected activity was a substantial factor in the retaliation.

Brightwell v. Lehman, 637 F.3d 187, 194 (3d Cir. 2011). Ifa plaintiff establishes these prima

facie elements, the defendant can still avoid liability by demonstrating, by a preponderance of the

15

evidence, that the same action would have been taken even in the absence of the protected

conduct. See Rauser v. Horn, 241 F.3d 330, 333 (d Cir. 2001).

Here, there is no dispute that the first element is met. Defendants do not contest that

Plaintiff engaged in constitutionally protected petitioning activity when he sent correspondence

to Defendants on or about December 23, 2013, advising them of potential civil rights litigation

and enclosing a draft complaint. What is lacking, however, is evidence that could support the

existence of elements two and three.

With regard to element two, the alleged retaliatory conduct must be “sufficient to deter a

person of ordinary firmness from exercising his First Amendment rights.” McKee v. Hart, 436

F.3d 165, 170 (3d Cir. 2006) (internal quotation marks and citation omitted). Defendants do not

contest the proposition that the arbitrary cancellation or rejection of a bid on government-held

property could constitute sufficiently adverse action.

Nevertheless, Defendants maintain that Plaintiff has not shown that they were personally

involved in such conduct. This argument is well-taken. Here, the record is devoid of evidence

showing that any of the named Defendants were involved in “cancelling” a bid that Plaintiff

made on property held in the Tax Claim Bureau repository. Instead, the evidence shows that it

was the County Tax Assessor, in the first instance, who made the decision whether to accept or

reject a particular bid. As County Commissioners, the Defendants’ only involvement was to

provide final approval of a sale after the Chief Assessor accepted an offer. Plaintiff has failed to

proffer any evidence indicating the Defendants’ awareness of his bids, other than the two bids

Plaintiff made relative to the Imagine America and Hartzell properties. As to these two parcels,

it is undisputed that Defendants approved Plaintiffs’ bid to acquire them, although Plaintiff

ultimately declined to purchase the Hartzell property. Nothing in the record supports the

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conclusion that Defendants knew about Plaintiffs other three bids on the Borland, Metro

Housing, and Bell Properties. On the contrary: the undisputed evidence establishes that those

bids were rejected by the County Assessor and therefore never came before the Defendants for

consideration. Thus, Plaintiff cannot satisfy the second element of his retaliation claim.

Plaintiff also cannot establish the third element of his retaliation claim, because there is

no evidence to suggest a causal link between Plaintiff’s protected activity and the rejection of his

bids. Under the law of this circuit, a plaintiff can rely on circumstantial evidence to support an

inference that a defendant’s acts were inspired by a retaliatory motive. See Watson v, Rozum,

834 F.3d 417, 422 (3d Cir. 2016). Such indirect evidence may consist of either “(1) an unusually

suggestive temporal proximity between the protected activity and the allegedly retaliatory action,

or (2) a pattern of antagonism coupled with timing that suggests a causal link.” Jd. Where the

timing alone is not “unusually suggestive” of retaliatory motive, the plaintiff must set forth other

evidence to establish a causal link. Krouse v. Am. Sterilizer Co., 126 F.3d 494, 503 (3d Cir.

1997).

Here, the record indicates that Defendants became aware of Plaintiffs protected activity

on or around December 23, 2013. Of the five bids in question, only one — relative to the Bell

property -- was rejected by the Tax Assessor after that date. The record reflects that the Assesso

made his decision on January 17, 2014, just twenty-five (25) days after Plaintiff petitioned the

Defendants. Notably, however, two of the five bids at issue in this case — the bids on the Imagin

America and Hartzell properties -- were accepted during this same general time frame. See

DCSMF 437.° Plaintiff was informed of the Defendants’ approval of his bid relative to the

> The remaining two bids — relative to the Borland and Metro Housing Properties — were rejected

by the County Assessor prior to the date of Plaintiff's protected activity and are therefore

immaterial to the Court’s analysis of potential retaliation.

17

Imagine America property by letter dated February 5, 2014 — just six weeks after the date of his

protected activity. DCSMF 917. Plaintiff was informed of the Defendants’ approval of his bid

relative to the Hartzell property by correspondence dated February 19, 2014 — some eight weeks

after Plaintiffs protected petitioning activity. Thus, the timing and results of the bidding process

do not support an inference of purposeful retaliation. Any such inference is all the more

untenable given the fact that another individual outbid Plaintiff on the Bell Property (and that

higher bid had been received prior to December 23, 2013). See DCSMF 938. Therefore, a

legitimate, non-retaliatory basis existed for the rejection of Plaintiffs bid.® And, as noted, there

is no evidence to suggest that the Defendants were even aware of Plaintiffs bid on the Bell

Property, as that bid was never submitted to them for approval.

Plaintiff's “Opposition to Motion for Summary Judgment” and “Statement of Material

Facts” fail to establish the existence of any genuinely disputed material fact. See ECF Nos. 171

and 171-1. In his opposition brief, Plaintiff argues a second theory of retaliation at length:

namely, that the Defendants cancelled the private tax sale bidding process altogether in

retaliation for Plaintiff's complaints about that process. However, this particular claim was

dismissed at the Rule 12(b)(6) stage on the basis of legislative immunity, see ECF No. 47 at 5-6,

ECF No. 48, and Plaintiff's attempts to revive that theory at this juncture are therefore

unavailing.

Plaintiff's “Statement of Material Facts in Opposition to Summary Judgment” is in the

nature of a sworn declaration. The contents of the declaration relate primarily to Plaintiff's

retaliation claim predicated upon the Defendants’ cancellation of the private bidding program

6 Based on this uncontroverted fact, Defendants have also established, as a matter of law, that the

same adverse action — the rejection of Plaintiffs bid on the Bell Property — would have occurred

even in the absence of Plaintiffs protected activity.

18

which, as discussed, is no longer a part of this litigation. Moreover, to the extent the declaration

contains any pertinent information regarding the Defendants, it is materially dependent upon

inadmissible hearsay statements from Rebecca Snyder, which cannot be considered at the Rule

56 stage. See Fed. R. Civ. P. 56(c)(4) (“An affidavit or declaration used to support or oppose a

motion must be made on personal knowledge, set out facts that would be admissible in evidence,

and show that the affiant or declarant is competent to testify on the matters stated.”’); Agrizap,

Inc. v. Woodstream Corp., 450 F, Supp. 2d 562, 567 (E.D. Pa. 2006) (“Evidence submitted with

a motion for summary judgment must be reducible to admissible evidence at trial.) (citing

Williams v. Borough of West Chester, 891 F, 2d 458, 465 n.12 Gd Cir. 1989)).

Plaintiff's declaration otherwise attempts simply to incorporate by reference all of the

allegations in his complaints. See ECF No. 171-1 at 1 (Plaintiff declaring “under penalty of

perjury that the facts in my First Amended Complaint, and in the subsequently submitted

complaint . . . are true and correct based on my personal involvement.”). At the Rule 56 stage,

“TuJnsupported allegations, subjective beliefs, or argument alone, however, cannot forestall

summary judgment. Heyman y. Citimortgage, Inc., Civ. No. 14-1680-KM-MAH, 2019 WL

2642655, at *15 (D.N.J. June 27, 2019) (citing Lujan v. Nat'l Wildlife Fed’n, 497 U.S. 871, 888

(1988) (nonmoving party may not successfully oppose summary judgment motion by simply

replacing “conclusory allegations of the complaint or answer with conclusory allegations of an

affidavit.’’))

For all of the foregoing reasons, Plaintiff has failed to adduce evidence that would show

the existence of a genuinely disputed issue of fact relative to the second and third elements of his

retaliation claim. In light of these deficiencies, Plaintiff's First Amendment retaliation claim

cannot withstand summary judgment.

19

2. Plaintiff's Equal Protection “Class of One” Claim

Plaintiff's second theory under §1983 is that Defendants violated his right to equal

protection under the law by essentially treating him as a “class of one.” To prevail under this

theory, Plaintiff must show that he was intentionally treated differently from other similarly

situated individuals and that no rational basis existed for the disparate treatment. See Phillips v.

Cty of Allegheny, 515 F.3d 224, 243 (3d Cir. 2008); Hill v. Borough of Kutztown, 455 F.3d 225,

239 (3d Cir. 2006).

In this case, Plaintiff bases his equal protection claim on the theory that his private bids

were disclosed to other competitors, while the competitors’ bids were not shared with him.

Plaintiff, however, has failed to identify evidence in support of this allegation, as is required at

the Rule 56 stage. Wiest v. Tyco Elec. Corp., 812 F.3d 319, 330 (3d Cir. 2016) (“[S]ummary

judgment is essentially ‘put up or shut up’ time for the non-moving party who must rebut the

motion with facts in the record and cannot rest solely on assertions made in the pleadings, legal

memoranda, or oral argument.’’) (internal quotation marks and citation omitted); Young v. Twp.

of Coolbaugh, 276 F. App'x 206, 209 (3d Cir. 2008) (plaintiff's equal protection “class of one”

claim could not survive summary judgment where plaintiff failed to produce evidence of

similarly situated proposals that were treated differently from his own land development

proposal).

Instead, the undisputed evidence shows that no intentional disparate treatment occurred i

terms of shared bidding information. As discussed, the Armstrong County Tax Claim Bureau is

obligated, under Pennsylvania law, to seek the local taxing body’s consent to the sale of a

property held in the Bureau’s repository. DCSMF 432. See 72 Pa, Stat. Ann. §5860.627.

20

Consistent with this law, the Tax Claim Bureau, prior to accepting a bid, provided notice of same

to the local taxing body. Only the fact of the bid and the identity of the bidder were disclosed.

DCSMF 9933-34. As set forth in the declaration of Rebecca Snyder, the Bureau did not disclose

the amount of any bids, including the amounts of Plaintiff's bids, to any other potential buyers.

Snyder Decl, 418, ECF No. 168-1 at 9. Further, as Defendants point out, the amount of the bids

themselves belie any suggestion that disclosure occurred. Specifically, Plaintiffs losing bid on

the Borland Property was the minimum of $400.00, whereas the winning bid was $1,000.00;

Plaintiff's losing bid on the Metro Housing, LLC Property was $400.00, while the winning bid

was $1,500.00; and Plaintiff's losing bid on the Bell Property was $1,000.00, while the winning

bid was $2,000.00. See DCSMF 994, 7, 9, 11, 19-20. In each case, Plaintiff lost to a bidder who

offered at least twice as much as Plaintiff did for the property in question. One might expect

that, if deliberate bid-rigging were occurring, Plaintiffs competitors would have known that they

could secure the subject properties with much lower offers that just barely exceeded Plaintiff's

bids.

Even assuming, however, that Plaintiff could produce evidence of discriminatory

treatment in the bidding process, he has not shown Defendants’ personal involvement therein.

As previously discussed, the Defendants’ only role in the sale of properties held in the Tax Clai

Bureau repository was to provide final approval of each sale following the County Tax

Assessor’s acceptance of an offer. DCSMF 431. No evidence exists to suggest that the

Defendants were even aware of Plaintiff’s bids, aside from the two bids that were accepted by

the Assessor and approved by the Defendants.

Plaintiff's arguments in opposition to summary judgment fall far short of identifying the

existence of a genuine issue of material fact. To demonstrate that he was “punished,” and

21

thereby treated in a disparate fashion, Plaintiff cites to Paragraph 34 of his Amended Complaint,

which alleges four acts of retaliation by the Defendants. ECF No. 25-1, 934. It is axiomatic,

however, that Plaintiff cannot withstand summary judgment merely by relying on the assertions

in his pleading. Wiest, 812 F.3d at 330. Moreover, Judge Hornak previously found three of the

four acts of retaliation to be non-actionable, and he dismissed those claims at the Rule 12(b)(6)

stage. See ECF No. 47 at 4-6 and ECF No. 48 (dismissing First Amendment retaliation claims

predicated upon Defendants’ alleged involvement in (a) directing the Director of the Tax Claims

Bureau not to talk with Plaintiff, (b) instructing the Director not to return Plaintiff's phone calls,

and (c) cancelling the private paper bid program in favor of a public auction system). As for the

fourth alleged act of retaliation —i.e., cancelling Plaintiff's bids on certain properties — there is

no evidence from which a jury could reasonably conclude that Plaintiff was treated differently

from other bidders, nor is there evidence to suggest that the rejection of his bids on the

“Borland,” “Metro Housing, LLC” or “Bell” properties was driven by an unlawful

discriminatory or retaliatory motive.

Plaintiff next points to Paragraph 17 of Rebecca Snyder’s declaration, which he interprets

as proof that he was treated differently from others: i.e, “he was the only one not allowed to

know when others bid on specific property addresses.” ECF No. 171 at 18. But the cited portion

of Ms. Snyder’s declaration merely states: “It is the policy of the [Tax Claim] Bureau only to

advise the local taxing authorities of the fact of a bid in order to obtain their approval for a sale

as required under Act 69. The Bureau only reveals the identity of the purchaser, but not the

amount of the bid.” ECF No. 168-1 at 9, 17. Nothing in this statement suggests that the Tax

Claim Bureau, or (more relevantly) the Defendants, gave out information about Plaintiffs bids to

other prospective purchasers. Thus, Plaintiffs theory rests solely on speculation.

22

In sum, Plaintiff has not demonstrated the existence of a genuinely disputed issue of fact

in support of his theory that the Defendants intentionally treated him differently from other

similarly situated bidders. Accordingly, his equal protection claim cannot survive summary

judgment.

IV. DEFENDANTS’ MOTION TO DISMISS [ECE No. 162]

Finally, the Court will address the Defendants’ motion to dismiss the complaint in Civil

Action No. 2:18-cv-388. The Defendants in this related action are Battaglia, Bower, Fink,

“County Counsel,” former Tax Claim Director Jeanne Englert, and Armstrong County. See

Marinkovic v. Battaglia, et al., No. 2:18-cv-388 (ECF No. 1-1). The complaint sets forth two

causes of action predicated on the Defendants’ alleged spoliation of evidence and “deliberate

indifference” to the violation of Plaintiff's federal civil rights. The claims arise out of Plaintiffs

grievances relative to discovery that was conducted in Civil Action No. 1:14-cv-49.

Defendants move to dismiss the complaint for failure to effectuate proper service and

failure to state a claim upon which relief can be granted. See ECF Nos. 157 and 158. Plaintiff

filed his reply in opposition, ECF No. 162, and the issues have therefore been properly joined for

purposes of adjudication. Because the Court finds that Plaintiff has not stated a cognizable legal

claim in his pleading, the Court need not reach the Defendants’ arguments concerning improper

service.

Federal Rule of Civil Procedure 12(b)(6) recognizes a defense based upon the Plaintiffs

failure to state a claim upon which relief can be granted. “When considering a Rule 12(b)(6)

motion, we accept all factual allegations as true, construe the complaint in the light most

favorable to the plaintiff, and determine whether, under any reasonable reading of the complaint,

23

the plaintiff may be entitled to relief.” Wayne Land & Mineral Grp. LLC y. Delaware River

Basin Comm'n, 894 F.3d 509, 526-27 (3d Cir. 2018) (internal quotation marks and citations

omitted). In order to survive dismissal, “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) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). Plausibility

means “more than a sheer possibility that a defendant has acted unlawfully.” Jd. “A claim has

facial plausibility when the plaintiff pleads factual content that allows the court to draw the

reasonable inference that the defendant is liable for the misconduct alleged.” Jd. (citing Twombly,

550 US. at 556). Although the court must accept all well-pleaded facts as true for purposes of a

Rule 12(b)(6) motion, it may disregard conclusory allegations. Fowler v. UPMC Shadyside, 578

F.3d 203, 210-11 (3d Cir. 2009).

In conducting its analysis, the court may consider the allegations in the complaint,

matters of public record, and undisputedly authentic documents upon which the plaintiffs claims

are premised. See Pension Benefit Guaranty Corp. v. White Consolidated Indus., Inc., 998 F.2d

1192, 1196 (3d Cir.1993). Because the instant case is consolidated with, and predicated upon,

the claims in Civil Action No. 1:14-cv-49, the Court’s scope of review includes matters presently

of record in that case. See In re Am. Cont'l Corp./Lincoln Sav. & Loan Sec. Litig., 102 F.3d

1524, 1537 (9th Cir. 1996) (“[A]mple authority exists which recognizes that matters of public

record, including court records in related or underlying cases which have a direct relation to the

matters at issue, may be looked to when ruling on a 12(b)(6) motion to dismiss.”), reversed on

other grounds by Lexecon Inc. v. Milberg Weiss Bershad Hynes & Lerach, 523 U.S. 26 (1998);

Advanced Fluid Systems, Inc. v. Huber, 28 F. Supp. 3d 306, 316 (M.D. Pa. 2014) (“In addition to

reviewing the facts contained in the complaint, the court may also consider ‘matters of public

24

record, orders, exhibits to the complaint and items appearing in the record of the case.’’’)

(quoting Oshiver v. Levin, Fishbein, Sedran & Berman, 38 F.3d 1380, 1384 n. 2 Gd Cir.1994)).

A. Count I: Plaintiff's Claim of Alleged Spoliation

In Count I of the Complaint, Plaintiff asserts a claim of spoliation based upon the theory

that the Defendants Battaglia, Bower, Fink, and Englert destroyed evidence that would have

helped him prove his First Amendment retaliation claim in Civil Action No. 1:14-cv-49.

Although Plaintiff does not specify precisely what records he believes were destroyed, he claims

the unidentified documents would have proved the following:

e that the Defendant Commissioners received Plaintiffs December 23, 2013

correspondence and draft complaint no later than January 10, 2014;

e that Defendant Commissioners thereafter terminated the private bidding program, to be

effective by the end of the day on January 17, 2014;

e that Plaintiff submitted, by fax, a timely bid on January 17, 2014 for the “only liveable”

house in Ford City;’

e that Plaintiff's bid was the only one placed on that “preferred property”; and

7 Although Plaintiff pointedly fails to identify in his Complaint what this “preferred property” is,

it is evident from the record that the Complaint is referring to the Hartzell Property which,

contrary to the allegations in the Complaint, is not located in Ford City. In drawing this

inference, the Court notes that Plaintiff made very similar allegations in his operative complaint

in Case No. 1:14-cv-49, specifically referencing the Hartzell Property as the “preferred property”

in question, and omitting any reference to Ford City. See ECF No. 31 at §§24(c), 25, 28, 34(d).

Moreover, in discovery, Plaintiff confirmed that the “preferred property” he was referring to was

the Hartzell Property. See ECF No. 168-1 at 59, 993-4; id. at 2, 93-4. Finally, uncontroverted

evidence in the record indicates that Plaintiff submitted his bid on the Hartzell Property on

January 17, 2014 — the very day Plaintiff claims that the private bidding program was scheduled

to end and the same day that he claims to have timely submitted his bid on the “preferred

property.” See DCSF 915; ECF No. 168-1 at 30. Plaintiff's affidavit in Civil Action 1:14-cv-49

alludes to a bid that Plaintiff supposedly made on a “3" Ave.” property in Ford City, but that bid

allegedly occurred at some point prior to December 23, 2013 (not on January 17, 2014). See

ECF No, 171-1 at §§1-3. To the extent Plaintiff's Complaint in 2:18-cv-388 suggests that the

“preferred property” was actually a different parcel located in Ford City, the Court finds such an

inference implausible.

25

e that, even though plaintiffs was the only bid for his preferred property, the Defendant

Commissioners refused to allow him to buy that parcel and canceled his bid.

Compl. (924-32, 36.

As Defendants point out, Pennsylvania law does not recognize spoliation of evidence as

an independent cause of action. Pyeritz v. Commonwealth, 32 A.3d 687, 692 (Pa. 2011); see

Ligato v. Wells Fargo Bank, N.A., No. CV 16-5683, 2018 WL 1141328, at *11 (B.D. Pa. Mar. 2,

2018) (“Defendants correctly note that Pennsylvania does not recognize an independent tort

action for spoliation of evidence.”) (citing Paluch vy. Sec'y Pa. Dept. Corr., 442 F. App’x 690,

694-95 (3d Cir. 2011) (per curiam)). Instead, a party aggrieved by the alleged spoliation of

material evidence is relegated to seeking evidentiary sanctions in the underlying litigation. See

Pyeritz, 32 A.3d at 692 (citing Schroeder v. Commw., 710 A.2d 23, 27 (Pa. 1998) (adopting the

Third Circuit’s approach to sanctions for spoliation of evidence)).

Plaintiffs Complaint acknowledges that he was aware, as of March 25, 2017, of the facts

giving rise to his spoliation claim. See Compl. 437. At that time, discovery was still ongoing in

Civil Action 1:14-cv-49. Thus, to the extent Plaintiff had a good faith basis to accuse Battaglia,

Bower, or Fink of destroying evidence, it was incumbent upon him to request evidentiary

sanctions in connection with the litigation in Civil Action No. 1:14-cv-49. Similarly, to the

extent Plaintiff believed that Tax Claim Director Jeanne Englert was in possession of

discoverable information relative to his claims in the underlying civil rights suit, it was

incumbent upon Plaintiff to diligently pursue such information — by issuance of a third-party

subpoena, if necessary — and seek relief from the Court in the form of sanctions, if he believed

26

that records were being improperly destroyed. What he cannot do is file a new lawsuit for

monetary damages based on allegations of spoliation.®

Plaintiff's various arguments in opposition to the dismissal of Count I are unpersuasive.

Initially, Plaintiff argues that the Defendants failed to timely answer the complaint and are now

in default, which precludes this Court from addressing the merits of their Rule 12(b)(6) motion.

Plaintiff is mistaken. On March 23, 2018, two days after Plaintiff lodged this Complaint, Judge

Hornak granted his motion for leave to proceed in forma pauperis, but expressly stated that the

Defendants’ obligations to file a Rule 12 response to the Complaint were held in abeyance

8 Even if this Court were to construe Plaintiff's complaint as a motion for spoliation sanctions

relative to underlying litigation in Case 1:14-cv-49, the motion would fail. In order for spoliation

to be established, it must be shown that: (1) the evidence in question was in the spoliating party's

control; (2) the evidence is relevant to the claims or defenses in the case; (3) there has been

actual suppression or withholding of evidence; and (4) the duty to preserve the evidence was

reasonably foreseeable to the spoliating party. Bull v. United Parcel Serv., Inc., 665 F.3d 68, 73

(3d Cir.2012) (citation omitted). The party who seeks a spoliation sanction bears the burden of

proving these factors. Universal Underswriters Ins. Co. v. Dedicated Logistics, Inc., No. CIV.A.

11-1153, 2014 WL 7335668, at *4 (W.D. Pa. Dec. 19, 2014).

Here, Plaintiff's complaint alludes to certain facts that he believes he could have

established through the lost evidence, Compl. §36, but his pleading pointedly fails to identify

what documents were supposedly destroyed. “A proper spoliation claim requires the moving

party to set forth evidence with specificity. In the absence of a showing that specific evidence

was ‘destroyed in order to prevent it from being used by the adverse party, a spoliation

instruction is improper.’” Flanders v. Dzugan, No. CIV.A. 12-1481, 2015 WL 5022734, at *5

(W.D. Pa. Aug. 24, 2015) (quoting U.S. v. Nelson, 481 F. App’x 40, 42 (3d Cir. 2012)); see also

Bensel vy. Allied Pilots Ass'n, 263 F.R.D. 150, 153 (D.N.J. 2009) (“Such a catch-all statement,

along with vague speculation as to whether evidence has been destroyed or even whether

evidence was relevant does not rise to the specificity level required by the Third Circuit to

impose sanctions or even make a finding of spoliation.”).

Moreover, none of the facts that Plaintiff believes he would have been able to “prove”

through the lost records would have ultimately been material to his retaliation claims. As

explained in more detail, infra, the alleged spoliation supposedly related to the Defendants’

actions in cancelling the private bid program and cancelling a particular bid on Plaintiff's

preferred property. Plaintiff's retaliation claim, based on cancellation of the private bid program,

was ultimately dismissed on legislative immunity grounds. And his retaliation claim based upon

Defendants’ alleged cancellation of his bid on the “preferred property” is belied by undisputed

evidence in the case record. Accordingly, Plaintiff's vague allegations about the destruction of

evidence are insufficient to state a plausible basis for spoliation sanctions.

27

pending the Court’s ability to review the pleading in accordance with its obligations under 28

U.S.C. §§1915 and/or 1915A. ECF No. 146. By Order entered on July 31, 2018, Judge Hornak

directed Plaintiff to effectuate service of process — or waiver of same — by September 4, 2018.

ECF No. 151. Judge Hornak expressly advised that the Court’s Order did not constitute a

finding that the complaint adequately set forth a claim for relief under applicable law. Id. The

docket does not reflect that Plaintiff filed any proof of service, nor does it appear that USM 285

forms were ever received for the newly added Defendants, so as to permit an order of service by

the U.S. Marshal Service. Nevertheless, Defendants filed their pending motion to dismiss on

November 2, 2018. Quite independent of Defendants’ request for dismissal, this Court has an

obligation under 28 U.S.C. §1915(e)(2) to review the Complaint and dismiss the action if “at any

time” the Court determines that the Complaint fails to state a claim upon which relief can be

granted. Accordingly, nothing about the current procedural posture of this case prevents the

Court from determining the legal sufficiency of Plaintiff's claims.

Plaintiff next argues that, even if spoliation is not the basis of an independent claim, he

may be able to pursue a remedy through traditional theories of bailment or negligence. The

simple response to this line of argument is that Plaintiff did not assert such claims, and for

reasons discussed below, the Court finds that further amendment of Count I is inappropriate.

Plaintiff also argues that, if his spoliation claim is not actionable because it is premature,

then he is entitled to a stay of this related action pending resolution of the original litigation in

Civil Action No. 1:14-cv-49. This argument misapprehends the central problem with Plaintiff's

spoliation claim: it is not deficient because of a lack of ripeness; rather it is deficient because

spoliation is not recognized under Pennsylvania law as an independent basis for a lawsuit.

28

This notwithstanding, Plaintiff urges the Court to recognize, “as a matter of first

impression,” that “a cause of action for spoliation can and must exist in federal court... □□ ECF

No. 162 at 5. In essence, Plaintiff reasons that an independent cause of action is necessary as a

means to vindicate federal rights. But federal courts have ample means at their disposal to

address discovery abuses and ensure the vindication of federal rights, both through their

sanctioning power under the Federal Rules of Civil Procedure and through their inherent civil

contempt powers. Plaintiff has cited no persuasive law to support the claim in Count I, and the

Court declines his invitation to recognize a federal cause of action for spoliation as a matter of

first impression. See Paluch y. Sec’y Pa. Dep’t Corr., 442 F. App’x 690, 694-95 (3d Cir. 2011)

(affirming dismissal of plaintiff's complaint and noting, with regard to claim predicated on

alleged spoliation, that “{Plaintiff] has pointed to no authority that allows for a freestanding

spoliation action under federal law and, to the extent that he sought to invoke the District Court's

supplemental jurisdiction, Pennsylvania has not recognized an independent action for

spoliation.”); accord Ball v. Beckley, No. 1:11-CV-1829, 2012 WL 3579583, at *12 (M.D. Pa.

July 13, 2012) (opining that plaintiff's claim of spoliation, standing alone, did not state a claim

upon which relief could be granted), report and recommendation adopted, No. 1:11-CV-1829,

2012 WL 3579614 (M.D. Pa. Aug. 17, 2012).

B. Count II: Plaintiff's Claim Based on Alleged “Deliberate Indifference”

In Count II of his complaint, Plaintiff asserts a claim against the named Defendants under

42 U.S.C. §1983 for “deliberate indifference.” In essence, Plaintiff's theory is that the alleged

destruction of records sabotaged his ability to successfully prosecute his First Amendment

retaliation claim and thereby denied him his right to a fair trial.

29 :

As discussed, a plaintiff asserting a §1983 claim must allege that a person acting under

color of state law deprived him of a right secured by the Constitution or laws of the United

States. 42 U.S.C. § 1983; West v. Atkins, 487 U.S. 42, 48 (1988). Defendants correctly note that

federal law does not prohibit “deliberate indifference” (a form of mens rea) in the abstract.

Rather, it is incumbent upon Plaintiff to allege that the Defendants violated a federally

guaranteed right. To that end, Plaintiff insists that he is alleging, in Count II, the violation of

three separate constitutional rights, fo wit:

(1) the 14 Amendment due process right to have records the county normally

preserves for others, protected for this plaintiff for this action after plaintiff gave

them notice of the action by actually sending the complaint to them; (2) the 1“ and

14 Amendment rights to a full and fair trial; and (3) the 1" Amendment right not

to be retaliated against by cancelling his bid and denying him the right to bid for

the rest of his life, for sending a complaint to the defendants.

ECF No. 162 at 12-13. None of these theories is viable in the context of this case.

To state a claim for a procedural due process violation, a plaintiff must allege (1) the

deprivation of “an individual interest that is encompassed within the Fourteenth Amendment's

protection of ‘life, liberty, or property,’” and must also show that (2) “the procedures available to

him did not provide ‘due process of law.’” Hill v. Borough of Kutztown, 455 F.3d 225, 233-34

(3d Cir. 2006). Plaintiffs due process claim fail to state a basis for relief because he did not

have a constitutionally protected interest in the unidentified records that were supposedly

destroyed. See Houchins v. KQED, Inc., 438 U.S. 1, 15 (1978) (holding that the Fourteenth

Amendment does not mandate a right of access to government information or sources of

information with the government's control); Bonnet v. Ward Cty., Tex., 539 F. App'x 481, 483

(5th Cir. 2013) (applying Houchins, and affirming district court’s determination that a landman

did not have a constitutionally protected liberty or property interest in accessing county records

for purposes of conducting title searches); Miramontes v. Zellerbach, No. EDCV 13-0027-JF W

30

RNB, 2014 WL 793143, at *7 (C.D. Cal. Feb, 26, 2014) (holding that plaintiff did not have a

constitutionally protected liberty interest, pursuant to California’s Public Records Act, in

obtaining access to a police dispatch tape recording for purposes of challenging his conviction

and sentence; noting that “ federal courts have held that other states' comparable public

disclosure laws do not give rise to a liberty or property interest protectible by the Fourteenth

Amendment”) (citing authority), Because Plaintiff has not plausibly alleged the deprivation of a

constitutionally protected property or liberty interest, he cannot state a due process violation.

Plaintiff also purports to assert a claim predicated on the alleged denial of his right to a

fair trial. Although Plaintiff invokes the Sixth Amendment, the rights afforded under that

amendment apply only in criminal cases. See U.S. Const. amend VI; Hester v. U.S., --- U.S. ---,

139 S. Ct. 509, 10-11 (noting, in dicta, that “the Sixth Amendment's jury trial right expressly

applies [i]n all criminal prosecutions’) (internal quotation marks and citation omitted; alteration

in the original). The Court assumes, therefore, that Plaintiff might be attempting to state a claim

for the alleged violation of his right to a jury trial under the Seventh Amendment, or his right of

access to the courts under the First Amendment. In either case, Plaintiff's complaint fails to state

a plausible constitutional violation.

The [Seventh] Amendment was designed to preserve the basic institution of jury trial in

only its most fundamental elements.” Galloway v. United States, 319 U.S, 372, 392 (1943).

The Seventh Amendment right to trial is only implicated where there are issues of fact to be

determined. Berger v. Hahnemann Univ. Hosp., 765 F. App'x 699, 704 (3d Cir. 2019) (citing

Parklane Hosiery Co. v. Shore, 439 U.S. 322, 336 (1979)).

Here, the spoliation that allegedly took place could not have impacted Plaintiff's Seventh

Amendment rights for the simple reason that Plaintiff's underlying claims ultimately lacked legal:

31

and factual merit, and the evidence that Plaintiff alleges was destroyed would not have otherwise

saved his claims. According to the complaint, the unspecified lost records would have

established, in part, that the Defendant Commissioners terminated the private bidding program

shortly after the Defendants received Plaintiffs December 23, 2013 correspondence and draft

complaint. Compl. §36. Presumably, Plaintiff would have used this information in support of

his First Amendment claim that the Defendant Commissioner’s retaliated against him by

cancelling the private bid program. But this claim was previously dismissed on the basis of

absolute legislative immunity. Therefore, possession of the “lost” records would not have made

it any more likely that Plaintiff's retaliation claim would get to a jury.

The Complaint also alleges that the unidentified lost records would have established that,

on January 17, 2014, Plaintiff placed a timely bid on his preferred property (i.e., the Hartzell

property), that his was the only bid for that property, and that the Defendant Commissioners

nevertheless “cancelled” his bid. Compl. 936. But Plaintiff's averment that he could have

proved the “cancellation” of his bid is implausible in the face of uncontroverted evidence that the

Defendant Commissioners actually approved Plaintiffs bid on the Hartzell property, and that it

was in fact Plaintiff who decided to waive his right to buy that parcel. See Civil Action No.

1:14-cv-49 at ECF No. 168-1 at 9, §915-16; id. at 30-33. Thus, Plaintiff has failed to allege a

plausible violation of his Seventh Amendment rights based upon the Defendants’ alleged

destruction of county records relative to Plaintiff's January 17, 2014 bid on his preferred

property.

For similar reasons, Plaintiffs allegations cannot be construed as alleging a plausible

violation of his right to access the courts. To state this type of claim, a plaintiff must allege that

his access to the courts was impaired, and that he suffered actual injury because of the

32

defendants’ actions. See Jones v. Brown, 461 F.3d 353, 359 (3d Cir. 2006). Actual injury results

when a plaintiff “has been hindered in an effort to pursue a nonfrivolous legal claim,” id., which

includes “the loss or rejection of a legal claim.” Oliver v. Fauver, 118 F.3d 175, 177 (3d Cir.

1997); see also Lewis v. Casey, 518 U.S. 343, 349-51 (1996). Because Plaintiff cannot plausibly

allege the loss or rejection of a legal claim stemming from the alleged spoliation of the

unspecified documents, he cannot state a claim predicated on the denial of access to the Courts.

As for Plaintiff's representation that he is also alleging, in Count IJ, a violation of his

First Amendment right “not to be retaliated against by cancelling his bid and denying him the

right to bid for the rest of his life,” this is merely a restatement of claims that Plaintiff previously

asserted in the underlying civil rights litigation at Civil Action 1:14-cv-49. Plaintiff cannot

revive, through a separately filed complaint, the First Amendment claims that were previously

dismissed or that are now subject to summary judgment in the original civil rights lawsuit. Asn

viable claim has been stated in Count II, that cause of action will be dismissed.

C. Amendment

As a general rule, when courts dismiss a claim pursuant to Rule 12(b)(6), they must allow

the plaintiff leave to amend, unless doing so would be inequitable or futile. See Grayson v.

Mayview State Hosp., 293 F.3d 103, 108 (3d Cir. 2002). In this case, the Court finds that further

amendment would be futile, because the deficiencies in the Complaint are not amenable to be

remedied upon repleading. Even if that were not so, given the age and prolixity of this case, and

the delay that would result from additional pleading, the Court finds that allowing further

amendment would unduly prejudice the Defendants and would be inequitable. Accordingly, the

Complaint in Civil Action 2:18-cv-388 will be dismissed with prejudice and without leave to

amend,

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V. CONCLUSION

Based upon all of the foregoing reasons, Plaintiff's motion to strike the Defendants’

exhibits will be denied. Plaintiffs motion to reopen discovery and request to file a Rule 56(d)

affidavit under seal will likewise be denied. The Court will grant Defendants’ motion for

summary judgment relative to the remaining claims in Case No. 1:14-cv-49. Pursuant to the

mandates of 28 U.S.C. §1915(e)(2), the Court will dismiss, with prejudice, the claims asserted in

Case No. 2:18-cv-388. The Court will grant Defendants’ motion to dismiss the claims in Case

No. 2:18-cv-388 to the extent that motion accords with this Court’s analysis under 28 U.S.C.

§1915(e)(2). Defendants’ motion to dismiss for failure to effectuate service will be denied as

moot.

An appropriate Order follows.

SUSAN PARADISE BAXTER

United States District Judge

34

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

MEL MARINKOVIC, )

Plaintiff, Case No. 1:14-cv-49 and

v. ) Case No. 2:18-cv-388

DAVID K. BATTAGLIA, et al.,

Defendants. )

ORDER OF JUDGMENT AND DISMISSAL

AND NOW, this 23rd day of September, for the reasons set forth in the accompanying

Memorandum Opinion,

IT IS ORDERED that Plaintiff's Motion to Strike Defendants’ Exhibits, ECF No. [171],

shall be, and hereby is, DENIED.

IT IS FURTHER ORDERED that Plaintiffs Motion to Reopen Discovery and Request to

File Rule 56(f) Affidavit Under Seal, ECF No. [172], shall be, and hereby are, DENIED.

IT IS FURTHER ORDERED that the Defendants’ Motion for Summary Judgment

relative to the remaining claims in Case No. 1:14-cv-49, ECF No. [165], shall be, and hereby is

GRANTED. In accordance with the foregoing, JUDGMENT is hereby entered in favor of

Defendants David K. Battaglia, Robert T. Bower, and Richard L. Fink, and against Plaintiff Mel

Marinkovic with respect to Plaintiff's First Amendment retaliation claim based upon the alleged

cancellation of his property bids and Plaintiff's “Class of One” Equal Protection Claim.

IT IS FURTHER ORDERED that, in accordance with the Court’s obligations under 28

U.S.C. §1915(e)(2), the claims asserted in Case No, 2:18-cv-388 shall be, and hereby are,

DISMISSED with prejudice.

IT IS FURTHER ORDERED that Defendants’ Motion to Dismiss the claims in Case No.

2:18-cv-388 pursuant to Federal Rule of Civil Procedure 12(b)(6), ECF No. [157], shall be, and

hereby is, GRANTED to the extent the motion accords with the Court’s analysis herein; in all

other respects, the motion is DENIED as moot.

Finally, IT IS ORDERED that the Defendants’ Motion to Dismiss the claims in Case No.

2:18-cv-388 for failure to effectuate service, pursuant to Federal Rule of Civil Procedure

12(b)(5), ECF No. [157], shall be, and hereby is, DENIED as moot.

There being no other outstanding claims pending before the Court in these consolidated

actions, the Clerk is hereby directed to mark them “CLOSED.”

SUSAN PARADISE BAXTER

United States District Judge