SHELIGA v. WINDBER BOROUGH

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

MICHAEL SHELIGA, :

Plaintiff :

v. : Case No. 3:23-cv-139-KRG-KAP

WINDBER BOROUGH, et al., :

Defendants :

Memorandum Order

Plaintiff Sheliga filed a complaint against defendants Windber Borough, a Windber

police officer, and a former Windber police officer, in June 2023. There were four claims

in the complaint: a claim of malicious prosecution stemming from plaintiff’s alleged

arrest (not alleged to have been by a named defendant) in June 2019, and three claims of

violations of the First Amendment that arose from alleged threats of arrest by one of the

named defendants, once on December 16, 2022, and twice on December 19, 2022, when

plaintiff alleged he was engaged in door-to-door canvassing about an upcoming election.

Defendants moved to dismiss the complaint in September 2023, Motion at ECF no. 10,

Brief at ECF no. 11, and plaintiff replied at ECF no. 12, Brief at ECF no. 13.

I was added to the case in October 2023, after plaintiff filed a motion at ECF no. 15

for a temporary restraining order or preliminary injunction alleging that he feared arrest

if he engaged in door to door canvassing in Windber about the election scheduled for

November 7, 2023. Because this did not become a consent case I referred the motion for

injunctive relief at ECF no. 15 back to the Court. The Court held a hearing and denied

injunctive relief on November 1, 2023. ECF no. 31. Plaintiff appealed to the Third Circuit.

Although the mandate will not be received for a little while yet, this month the

Court of Appeals affirmed the denial of injunctive relief, at Sheliga v. Borough of Windber,

No. 23-2998, 2024 WL 5088109, at *1 (3d Cir. Dec. 12, 2024). In the course of doing so

the Court of Appeals made or affirmed findings of fact that are law of the case. Meanwhile,

a criminal prosecution that arose out of an arrest on December 20, 2022 (not by a named

defendant) proceeded until it was nol prossed a month ago by the District Attorney of

Somerset County. That has spawned its own lawsuit, Sheliga v. Frear, 24-cv-300-SLH

(W.D.Pa.), alleging similar First Amendment and malicious prosecution claims.

In Sheliga v. Frear, plaintiff seeks compensatory and punitive damages as well as

injunctive relief. In this earlier complaint, however, plaintiff sought only costs of suit,

some of which are not taxable (taxable costs are enumerated in 28 U.S.C.§ 1920, and do

not include “travel costs” or “reimbursement for driving time”), injunctive relief,

declaratory relief, and “damages of $1 for irreparable harm.”

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The Court of Appeals has finally decided the question of injunctive relief, and done

so adversely to plaintiff. The claims regarding the 2023 election were dismissed as moot,

and as for prospective relief, the appellate panel held:

Upon review, we agree with the District Court that Miller [sic] did not show that

he is likely to suffer harm in the absence of injunctive relief.

Sheliga v. Borough of Windber, supra, at *2. For this Court to have jurisdiction over this

case, not only was it necessary for there to be an actual controversy at the outset of

litigation, but that controversy must continue throughout its course. Arizonans for

Official English v. Arizona, 520 U.S. 43, 67 (1997). See also Camreta v. Greene, 563 U.S.

692, 711 (2011) (“When subsequent events make it absolutely clear that the allegedly

wrongful behavior could not reasonably be expected to recur we have no live controversy

to review.” (cleaned up, citations omitted)). In large part the matter is moot.

Plaintiff’s request for declaratory relief is certainly moot because a declaratory

judgment is a forward-looking remedy, and there is no live case or controversy with

respect to any declaratory relief that can be sought. Judge Sloviter, writing for the Court

of Appeals a quarter of a century ago, explained:

A declaratory judgment or injunction can issue only when the constitutional

standing requirements of a “case” or “controversy” are met. See U.S. Const., art. III,

§ 2; Maryland Casualty Co. v. Pacific Coal & Oil Co., 312 U.S. 270, 272, 61 S.Ct. 510,

85 L.Ed. 826 (1941). Although declaratory judgments are frequently sought in

advance of the full harm expected, they must still present a justiciable controversy

rather than “abstract, hypothetical or contingent questions.” Alabama State

Federation of Labor v. McAdory, 325 U.S. 450, 461, 65 S.Ct. 1384, 89 L.Ed. 1725

(1945). We have explained that these standing requirements are satisfied when

“there is a substantial controversy, between parties having adverse legal interests,

of sufficient immediacy and reality to warrant the issuance of a declaratory

judgment.” Step–Saver Data Systems, Inc. v. Wyse Technology, 912 F.2d 643, 647

(3d Cir.1990) (quoting Maryland Casualty, 312 U.S. at 273, 61 S.Ct. 510).

St. Thomas--St. John Hotel & Tourism Association, Inc. v. Government of U.S. Virgin

Islands, 218 F.3d 232, 240 (3d Cir. 2000). Past injury confers no standing to seek

declaratory relief any more than it confers standing to seek injunctive relief. To have

standing to seek declaratory relief plaintiff needed to allege facts that would “establish a

real and immediate threat that he would again be [the victim of the allegedly

unconstitutional practice.]” Brown v. Fauver, 819 F.2d 395, 400 (3d Cir. 1987), quoting

City of Los Angeles v. Lyons, 461 U.S. 95, 105 (1983). See also Jones v. Unknown D.O.C.

Bus Driver & Transportation Crew, 944 F.3d 478, 483 (3d Cir. 2019). He did not do that.

2

Declaratory relief is unavailable for the purpose of obtaining a determination that

an opposing party’s past conduct was wrong. Taggart v. Saltz, 855 Fed.Appx. 812, 815 (3d

Cir. 2021), citing Waller v. Hanlon, 922 F.3d 590, 603 (5th Cir. 2019). Waller v. Hanlon,

in turn, at 922 F.3d 603–04, cited Ashcroft v. Mattis, 431 U.S. 171, 172 (1977) (per

curiam). The Supreme Court made it clear that where a plaintiff alleges only past injury,

a plaintiff has no standing to seek declaratory relief because no present legal right is at

stake. In Ashcroft v. Mattis, Mattis’ 18-year-old son was shot and killed by police while

attempting to escape arrest, and Mattis filed suit in federal court for money damages and

a declaratory judgment that the Missouri statute authorizing the use of deadly force was

unconstitutional. The damages claim was dismissed without appeal. The Supreme Court

held that since the liability of the police officers had been finally decided, neither the

academic value of answering hypothetical questions nor the emotional satisfaction to a

successful party from a favorable ruling gave a federal court jurisdiction to issue a

declaratory judgment about whether the use of force statute was constitutional. See

Ashcroft v. Mattis, 431 U.S. at 172-73. That applies with full force to plaintiff’s claims.

That leaves the request for nominal damages “of $1 for irreparable harm.”

Although the logic of the matter compels a conclusion that a claim for nominal damages

is equally a moot one, see the concurring opinion in Freedom from Religion Found. Inc.

v. New Kensington Arnold School District, 832 F.3d 469, 484-88 (3d Cir. 2016), plenty of

precedent holds that the prayer for nominal damages saves this case from being

completely moot. That does not mean common sense should not prevail, and I note that

plaintiff even offered to drop the “token” (Plaintiff’s Brief at 14) nominal damages claim.

What is left here is the prospect of protracted litigation, appeals included, over a

maximum recovery of $1 for “irreparable harm” that the Court of Appeals said does not

exist. See Sheliga v. Borough of Windber, supra, 2024 WL 5088109, at *2: “In particular,

[plaintiff] did not show that he faced a real and immediate threat that he would be

arrested merely for engaging in door-to-door canvassing.” I cannot force the defendants

to make an offer of judgment under Rule 68, and if defendants made an $1 offer of

judgment under Rule 68 I cannot force plaintiff to take it. But I suggest that they turn

their attention from this sideshow and focus on Sheliga v. Frear.

If that course does not commend itself to the parties, then it is clear that the motion

to dismiss brings in matters extraneous to the pleadings and should be considered under

the standards for awarding summary judgment. In that connection, Fed.R.Civ.P. 56(f)(3)

and Celotex Corp. v. Catrett, 477 U.S. 317, 326 (1986) give this Court the power to issue a

sua sponte order for summary judgment so long as the parties are notified that they must

come forward with all relevant evidence. And see Gibson v. Mayor & Council of City of

Wilmington, 355 F.3d 215, 224 (3d Cir.2004)(affirming sua sponte grant of summary

judgment without notice on the grounds that notice may not be necessary in the presence

of a fully developed record, or when the decision is based on a purely legal issue); Couden

3

v. Duffy, 446 F.3d 483, 500 (3d Cir.2006)(affirming sua sponte grant of summary

judgment to nonmoving parties). I so notify the parties. They may file any specific motion

under Rule 56(d) explaining what limited discovery they need, but the parties shall, on or

before January 31, 2025, come forth with all evidence (they need not duplicate exhibits

already presented) showing that there is a genuine issue of fact for trial as to any issue.

With respect to Windber Borough, the parties are specifically required to address what

evidence exists that any actions by the individual defendants (or by nondefendant

Schrader) were pursuant to a custom or policy of the borough, given the law of the case

that Windber Borough has no relevant ordinance. See ECF no. 31 at 14.

I will, if necessary, then file a Report and Recommendation to which the parties

can file objections pursuant to 28 U.S.C.8 636(b)(1).

IR

DATE:_ December 31, 2024

Keith A. Pesto,

United States Magistrate Judge

Notice by ECF to parties or their counsel