# MARINKOVIC v. BATTAGLIA

> District Court, W.D. Pennsylvania · September 23, 2019

URL: https://www.frixlaw.com/law-library/cases/10415034

## Case

- **Court:** District Court, W.D. Pennsylvania
- **Decided:** September 23, 2019
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10415034

## How later opinions describe it (automated extraction)

- 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

## Opinion text

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

16

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10415034. Public record. Not legal advice.