Petition for Writ of Certiorari — Scanlin v. Cooper

~ ;

Supreme Vourl, v..

. 9

{ | $i LED

961458 JAN 1 3 1997.

gp oh BE

IN THE

SUPREME COURT OF THE UNITED STATES

No:

October Term 1996

John J. Scanlin, Citizen

Mr. and Mrs. Robert M. Cooper, et al

On Petition For Writ of Certiorari

To The Federal Middle District Court of

Williamsport, Pennsylvania

PETITION FOR WRIT OF CERTIORARI

John J. Scanlin, Pro Se

3200 Lambs Creek Road

Mansfield, Penna., 16933

Phone: 717-662-7110

INTRODUCTION

71 year old petitioner comes to this Court both as

an individual, and as president and sole incor-

porator of a not-for-profit humanitarian organi-

zation, the World Unicorn Society, Inc., believing

that his constitutional rights to own and enjoy

private property have been unrelentingly abridged

by the several defendants, acting in concert

through a ‘pressure matrix’ effectively to nullify

and circumvent lawful government.

Additionally, petitioner believes he has been

targeted by this local ‘pressure matrix’ because of

his human and civil rights activism, which is

based on, and described in the petitioner’s 1977

unpublished, but widely circulated manuscript:

“In Search Of New Directions” (ten copies are

submitted with this petition.)

While petitioner’s right of free expression has

not been abridged, he believes he has been vic-

timized and punished for his views and activism

by systematized and unrelenting denial of public

and governmental services, which are constitu-

tionally, and morally his due as a lawful citizen of

the United States of America.

Petitioner believes the named individual de-

fendants, who are local managers and employees

of state and federal agencies, and elected and

appointed municipal officials, comprise this

‘pressure matrix’ which nullifies lawful govern-

ance and effectively has built a “whites only”

community. The petitioner advocating racial and

gender fairness has been subjected to 16 years of

harassment... even to possible death by drowning

because of his social activism.

|

QUESTIONS PRESENTED FOR REVIEW

1. Has the lawful power of Eminent Domain been

used to abridge the private property rights of the

Petitioner?

2. Has Petitioner been exposed to unreasonable

restrictions by USACE which have endangered

his life?

3. Has Petitioner been subjected to unconstitu-

tional harassment by Penna. State Police for

purpose of intimidation?

4. Why were the two Penna. State Troopers who

criminally charged the Petitioner never identified?

5. Has Petitioner’s 1977 manuscript: “In Search of

New Directions” been the cause of the harassment

lasting (16) years?

6. Has the Petitioner been denied due process in

the Middle District Court at Williamsport, Penna.?

7. Did that Court render its opinion based solely

on the defective form of original complaint rather

than on the substance of the matter?

8. Is Avulsion, due to flood, a valid legal theory;

and if so, why was it never mentioned to the Pe-

titioner, by any Respondent, in order that he might

regain his massively eroded land?

9. Was an unidentified court clerk’s inference of a

Masonic conspiracy warranted by the original

complaint?

10. Did that inference prejudice the entire case?

11. Why were Respondents Cooper, Koeppel, and

Gettle permitted to decline answering a valid one

page interrogatory?

ii

John J. Scanlin, Citizen

Vv

Mr. & Mrs. Robert M. Cooper

U.S. Army Corps of Engineers (USACE)

Richard Koeppel, Allen Gettle,

Craig R. Homesley

Pennsylvania State Police (PSP)

John Toner, Corporal Herbst,

Trooper John Doe #1 and

Trooper John Doe #2

Pennsylvania Department of Transportation

T. Bryant (PennDot)

Penna. Department of Environment Resources

D. Smeal, D.Ericson, R. Yowell, A.Sever, (D.E.R.)

P. Dembowski, & Larry Oliver

Richmond Township Board of Supervisors

Charles Neal, Chairman

Commonwealth Telephone Company

Dale Stone (CTCO)

Corporate Statement: The W.U:S. Inc. is presently

financially supported by newly created: Love

Across Borders, Inc. Both are Penna., non-profit

corporations.

iil

Table of Contents

Introduction

Questions Presented for Review

Complete List of Respondents

Table of Contents

Table of Authorities

Petition (Chronology)

Argument

Layman’s Analysis

Summation

Petitioner’s Request

Appendix

Supplements:

Additional Appendix:

Manuscript Exhibit:

Page 1

Page 11

Page ill

Page iv

Page v

Pages 1-3

Pages 3-7

Pages 7-9

Page 10

Page 11

Pages Al-Al19

Pages AA1-AA8

& 9-74

“In Search of New Directions” Pages 1-122

1V

Table of Authorities

1. The United States Constitution

(a) Amendment I

(b) Amendment vil

(c) Amendment XI

(d) Amendment XIV

> Civil Rights Act of 1964-1965:

Sections 1983, 1985 & 1986

3. The Clean Water Act: PL. 834 Section 404

4 The Streambank Erosion Control Evaluation and

Demonstration Act of 1974 Section 32 P.L. 93-251

PETITION

Chronology

1. 1962: Petitioner purchased 170 acres with

Lambs Creek as a south boundary.

2. 1965: Creeley, Shick, and Cooper purchased

residential properties on Lambs Creek Road, with

rear lot lines near creek south bank.

3. 1969: Respondent Cooper purchased partial

acre touching creek and became a riparian owner.

4. 1972: June 22, massive creek flood from

Hurricane Agnes.

5. 1977: Petitioner, still an absentee owner,

produced manuscript: “ In Search of New Direc-

tions”

6. 1978-1979: USACE under Eminent Domain,

purchased 20.79 acres of creekside pasture from

Petitioner and gave access easement to remaining

150 acres.

7. 1980: Petitioner relocated to Lambs Creek

and began construction of small home.

8. 1981: Petitioner contacted Respondent

Koeppel Re: Driveway construction. No response.

9. 1983: Petitioner applied for permits to build

bridge and restore 1972 flood stream bank ero-

sion; D.E.R. Larry Oliver visited site.

10. 1984 to 1992: Respondent Cooper, using

PennDot trucks and personnel, filled creek

flood-way from south bank to prevent stream

return to former 1969 channel.

11. 1992: Petitioner wrote letter of complaint to

Penna. Transportation Secretary RE: Cooper,

PennDot and Richmond Township annual fill

dumped into creek.

12. 1994: July 4, Petitioner’s emergency alu-

minum ladder bridge across swollen creek

l

——

—

disappeared; never found.

13. 1994: August 17: Respondent Koeppel ad-

vised: Petitioner considering civil law suit. Re-

spondent Craig Homesley visited site. Massive

flash flood August 17, 1994 washed out creek

dangerously.

14. 1995: April 27, Petitioner was criminally

charged by two (unidentified) Penna. State

Troopers, summoned by Cooper, for clearing

vegetation and saplings in creek gravel bar.

15. 1995: Advised of impending suit, Respon-

dents Gettle, Koeppel and Homesley permit Pe-

titioner rights in easement which were withheld

from 1980. Easement is shifted 17 feet to east.

16. 1995: Magistrate Signor, Mansfield Bor-

ough, dismissed criminal charges on condition

Petitioner sue Respondent Cooper in civil court.

17. 1995: June 27, 1995, Petitioner filed county

civil suit and federal civil rights suit vs. several

named Respondents.

1g. 1995: August 1, Respondent Cooper filed

answer to June 27, complaint (10) days beyond

limit. He failed to sign waiver, to gain 60 day

response time. Petitioner filed default motion.

19. 1995: December, Respondents Cooper, Koep-

pel and Gettle decline to answer Petitioner’s single

page interrogatory. Dale Stone of Commonwealth

Telephone Co. responded by questioning Peti-

tioner’s sanity. He is, now, considered a Re-

spondent.

20. 1996: Judge McClure, on February 21,

signed opinion and order. dismissing all Peti-

tioner’s allegations with prejudice. Original

judge Muir filed his recusal on August 28, 1995

because of Masonic conflict.

2

21. 1996: August 28 and October 16, two ap-

peals to Third Circuit Court in Philadelphia, were

denied.

22. Presently: Certiorari appeal to Supreme

Court RE: Abridgment of Petitioner’s rights in

private property, freedom of expression without

reprisal, due process and, equal treatment under

the Constitution and Civil Rights Laws of

1964-65, sections 1983, 1985 and 1986.

ARGUMENT

Abridgment of Rights in Private Property:

After cooperating with USACE in the Eminent

Domain ‘taking’ in 1979, Petitioner was denied,

by unreasonable Koeppel restrictions, the fol-

lowing:

Permission to construct a bridge of reasonable

span crossing Lambs Creek. ( see AA4)

Permission to place a small retirement business

Sign in easement . (see AAS). Sign was taken down.

Permission to construct a few parking spaces in

easement at roadside. ( see AA4)

Permission to park personal car in his easement

driveway. ( see AA4)

Permission to fence easement at roadside to halt

encroachment. Others could park; Petitioner was

not permitted to do so. (see AA4)

Most outrageously, during the several days of

high water each year, Petitioner had to risk

drowning to reach his home while crawling across

20 foot section of aluminum ladder. ( see AAI)

Petitioner believes that no citizen in our De-

mocracy should be subjected to such arbitrary

power by a local manager of a Federal Agency.

3

=~

OS he

sce ln a

Making the unreasonableness complete, each

verbal Koeppel edict was supported by Officer

Gettle and Real Estate Manager Craig Homesley

from USACE Baltimore Office.

Only the Petitioner’s decision to sue, in 1995,

produced the permitting letter after sixteen years.

( see AA4 )

Abridgment of Right of Free Expression without

reprisal:

Neither Respondent Koeppel nor Respondent

Cooper could have succeeded in their unrelenting

harassment of Petitioner without close mutual

cooperation. Of far greater importance, the co-

operation of Richmond Township Supervisors, all

named Penna. D.E.R. Respondents, the named

PennDot Supervisor Bryant, and Respondent Dale

Stone of Commonwealth Telephone Co., and the

named Penna. State Police Respondents, was

required to make this Pressure Matrix thoroughly

effective during the sixteen years of harassment.

Respondent Cooper was Chairman of the Rich-

mond Township Zoning Board, and as alleged on

page #4 of original complaint, his civic, political,

and fraternal contacts made the harassment of the

Petitioner, not only possible, but almost invin-

cible. Petitioner believes the basic motive of the

Pressure Matrix was not based on monetary gain,

but that it was racially motivated by ‘would be”

white supremacists who prefer their County re-

main unsullied by racial minority residents and

other undesirables who advocate racial and gen-

der fairness.

Petitioner believes that the views expressed in

his 1977 manuscript made him a primary target

4

for banishment from the Mansfield, Tioga

County, Penna. Community.

Denial of Due Process: It is completely under-

standable to the Petitioner that the Federal Middle

District Court would fail to find credibility in the

lengthy original complaint. That is the price one

must expect to pay when embarking on a “Paul

Revere’ mission in contemporary America.

But we are a society torn by racial tensions; we

prefer to be\racially separated, (see AA6, AA7 &

AA8) ; we appear to have tired of Affirmative

Action after thirty years and we would like our

many millions of non-white citizens to disappear.

But each is a citizen; our Constitution does not

provide for second class citizenship; and having

been the recipient of many societal blessings paid

for with taxpayer dollars, simple decency and

sense of fair play demand that this Petitioner make

an honest attempt to extend to citizens of color the

blessings he has received in our free society. If

these views are disturbing to some marginal

groups in our Nation, it is regrettable...

But that is not good cause for denying a review

of this matter, which the Petitioner believes to be

a terminal societal cancer,... which scars our

individual hearts and makes a mockery of our

founding Declaration that ‘all men are created

equal’. Petitioner believes a trial by jury is the

democratic way of facing the euphemism: “We are

not racist; ... we just feel that each should live

among his own kind.”

Equal Treatment Under The Law: Petitioner’s,

age and single status, coupled with his human and

5

en

civil rights activism, makes him an easy mark for

a Pressure Matrix. His only hope of assistance is

through even handed police protection. But when

the State Police abdicate their sworn duty, and

their objectivity, issuing criminal chargings on

demand, the Petitioner only has hope of redress in

the Court.

Petitioner submits that he is not a criminal and

had never been criminally charged before dis-

cussing his 1977 Manuscript, admitting his (20)

twenty year support of the ACLU, and stating his

reluctance to join any fraternal society which

practices blackballing, meetings closed to the

public, and racial and gender exclusion,... with

Respondent Cooper in 1980. Petitioner submits

such views, and actions, should not be ground for

denial of public services and intimidation by State

Police.

RE: PRO SE ELIGIBILITY

In the transmittal letter of Jan. 21, ‘97 from this

court requesting corrections, (Rowland, etc. vCA

Men’s Colony) was cited in denying pro se rep-

resentation to the World Unicorn Society, Inc.

In this 5 to 4 decision, the Advocacy Association

was seeking pauper status for the Assoc. It was

denied, and both the majority and dissenting

opinions discussed the meaning of ‘person’. The

matter being resolved largely on the question of

‘who in an assoc., or corporation composed of

many officers, members or shareholders could

sign an affidavit, or take an oath binding on all

members.

Petitioner believes none of the conditions de-

liberated in ‘Rowland’ is relevant to the instant

6

matter, for the following reasons:

A. Neither petitioner herein has sought pauper

status.

B. Petitioner Scanlin is a person.

C. The W. U. S., is a lawful Penna. non-profit

corporation having only one incorporator, and no

shareholders; therefore the question of ‘who

speaks for...(swears for)’ the group cannot be in

dispute; there being only one (1) incorporator and no |

other officers shown in the corporate charter.

D. The practical matter appears to be: )

John J. Scanlin, ‘person’ is limited by his

mortality; in the corporate form, he is not. Since |

only one and the same person is involved, peti- !

tioner believes both petitioners should be per- |

mitted to participate. )

LAYMAN’S ANALYSIS

CASE No.4:CV-95-1012

Petitioner believes (4) constitutional issues are

involved: |

a. Abridgment of private property rights.

b. Freedom of expression without government

reprisal |

c. Denial of due process by Feb. 21,1996 opin-

ion and order

d. Denial of equal treatment under the law, by

both government agencies and the Middle District |

Court of Pennsylvania.

Petitioner believes he has demonstrated patience

in this (16) year matter which could have been

resolved in (72) hours among rational people, if

all cards had been laid face up on the table. But

7

——

Petitioner believes we have been shadowboxing,

and therefore a rational arbitrated solution was

never possible.

This discussion is keyed to the first (8) pages of

our supplemental document titled: ADDITIONAL

APPENDIX. The numbered pages filling out the

additional appendix, are relevant to the tale but

unnecessary to recognition of the paradox.

The Petitioner, having pecked at his Sears

‘Forecast 12’ ancient typewriter for several days,

finally surrenders to the virtual reality of the

experience. In true ‘who done it’ fashion, the tale

is told in flashback, with an unlikely cast of

characters rivaling Bogie, Sidney and Peter in the

Maltese Falcon of black and white cinema.

The protagonist, Hermit Jack, admitting that he

cannot produce a rational analysis as promised,

abdicates his civic duty, requesting the reader to

find the thread of the tale in the first (8) numbered

pages, which begin, fittingly, with an elaborate

map embellished with highlights in color and

many notations, elevations and compass direc-

tions.

The scene now shifts to the flashback: ...On a

dark night of bone chilling torrential rain, fifty

young airmen are riding the olive drab military

bus back to Keesler Field, from the town of

Biloxi, Mississippi. There is not a word of con-

versation: each young G.I. absorbed in his per-

sonal reverie. The war to save Democracy from

the Huns and the Japs is not going well; Some

aboard might never celebrate their nineteenth

birthday.

Suddenly the tired old bus lurches to the

shoulder of the dark country road, ...but for a long

8

few minutes nothing happens. Restless foot

shifting is the only sound from the fifty seated

young airmen; it blends ominously with the me-

tallic drumbeat of the rain on the roof.

The front door is flung open by the obese ci-

vilian driver, and a little lady weighing at most, 80

pounds, barely five feet tall and possibly 75 years

old mounts the two steps to place her coin in the .

box near the driver. She lurches unsteadily down |

the aisle with her tattered oilcloth shopping bag as

the driver accelerates. A young GI. sitting in an

aisle seat midway down the aisle rises to offer the

little lady his seat. Remember, this was an earlier

time, he had been admonished daily, by the nuns

in the Holy Family Parochial! School to show

respect to the elderly, especially ladies. In a

fleeting glance he imagined he saw her eyes of

quiet dignity cloud over with fear. She had barely

adjusted her shopping bag at her knee, when the

bus again lurched to the road shoulder. This time

the door was not opened; no one entered. The

motor idled, 100 feet shifted and the cold rain

pelted the roof and windows. Faintly, the standing

airman felt a brush against his outstretched arm

holding on to the ‘standees’ pole. The little lady

had risen and was again making her way down the

aisle. The G.I. glanced to the front of the bus;

framed in the circle of the convex mirror above

the driver’s head he witnessed a transforming

sight: the naked face of hatred. Confused, the lad

tried to avert his eyes, but they rested on the little |

black line painted directly in front of his nose

above the windows just below the patriotic curved

posters reminding that: “A slip of the lip can sink

a ship.” Young naive Hermit Jack had been in-

troduced to segregation and to irony. He had given

9

|

his seat, forward of the color line to the little black

skinned lady. This was 1944, in Mississippi,

segregation was the law of the land; the driver

would not move the bus until the lady was in her

proper place. Not a word was spoken by anyone in

the entire happening; the bus once again rumbled

onward into the night. No airman rose to offer his

seat; she rode a few miles then stepped off into the

darkness and the rain. Fifty young men were on

their way to war; possibly to their death, in de-

fense of freedom. Only one it seems recognized

the irony.

SUMMATION

Note: There is numerology involved in this tale

also. The numbers one and seven. Serendipitously

they are again involved in reverse order. At 17,

enlistment in the Army Air Force; at 71 peti-

tioning the Supreme Court. Two vastly different

efforts, but still bound by the common thread. In

all the intervening years, and myriad experiences,

Jack’s defining moment was lived on the bus from

Biloxi. The question: “when will we ever learn?”

seemingly will not go away.

After reading to page (7AA) the reader might

suppose that the matter being appealed involves

real estate, specifically a riparian creek centerline

boundary. But turning to the following page we

find that paradoxically, it is about another lady on

another bus. This happening was a defining mo-

ment, not only for Jack, but for our entire society.

It presently underpins the civil suit being ap-

pealed. It remains unacknowledged by all Re-

spondents. But if we persist in employing

euphemisms to cover our ‘hardness of heart’, the

Petitioner believes we will soon have transformed

the United States of America into the not-so-

10

pleasant nation of ‘Euphemasia, North America’.

If we love our children and grandchildren, this is

hardly a fitting legacy.

The petitioner wishes to thank the members of

the Court, and all opposing Counsel and their

staff, for the kindness, patience and attention

shown to this pro se petitioner, who, like the Man

from La Mancha, refuses to remain prostrate after

being smote unrelentingly by his (Rational?)

government at every level.

Petitioner’s Request

Petitioner asks that the Supreme Court adjudi-

cate the several matters of avulsion, and false

criminal charging, which are interlocked and are

the key to determining the riparian boundary, in a

creek under purview of (USACE).

If this is not the purview of the Court, the Peti-

tioner asks that an order be issued requiring a trial

by jury be held as soon as possible, in Harrisburg,

Pennsylvania, to permit an open, disinterested

verdict in a civil trial.

Petitioner asks that the World Unicorn Society,

Inc be permitted to remain a Petitioner.

Resgept ily su ov.

John J. Sedniin. Pro on

Date: 3-10-97

APPENDIX

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF PENNA.

No: 4:CV-95-1012

Memorandum Filed by Judge

James F. McClure, Jr.

Feb.21, 1996

BACKGROUND: Plaintiffs Scanlin & The World

Unicorn Society., Inc. filed this action alleging

the violation of their civil rights over a period of |

fifteen years, spanning years 1979 to 1995. Some

of the allegations predate 1979.

Plaintiffs bring this action against Mr. & Mrs. R. |

Cooper, neighboring landowners; Richmond Twp.

the (USACE); Penna. D.E.R.; PennDot; Pa. State

Police, (PSP) and against various employees and

agents of those state and federal entities. .

Plaintiff owns property and resides along Lambs

Creek in Richmond Twp., Tioga County, Pa.

Plaintiffs’ allegations against the defendants are

many and varied. His complaint consists of a

narrative describing, in brief, his life, his political

views and objectives and a history of his rela-

tionships with the various defendants.

From that narrative we cull the following alle- .

gations which appear to have some bearing on the

claims alleged: The Coopers share a common

boundary with Scanlin --- the boundary being the

centerline of Lambs Creek. Plaintiff alleges that

over the years the Coopers have conducted a

whisper campaign against him because he is an

outsider to the area and promotes ideas with |

which they disagree. He alleges that Cooper has

used his contacts as a Mason to incite harassment |

against him by fellow Masons. Plaintiff alleges

Al |

that for the past fifteen years, the Coopers have

dumped PennDot salt and cinders into the creek

bed and have used other PennDot materials and

labor to divert the course of the stream, but that

plaintiff's complaints have gone unheeded.

Plaintiff alleges that the USACE “trampled” his

rights over an eighteen year period by: 1. taking,

by exercise of eminent domain, more land than it

required in 1979; 2. allowing others to transport a

frame chapel across his land in 1973. 3. “ramp-

ing” his creek bank, allegedly thereby causing

erosion to plaintiff's bank. 4. refusing to coop-

erate or assist plaintiff in taking measures to stem

the erosion of his stream bank. 5. failing to protect

plaintiff's rights in an easement; and 6. charging

him a $250.00 grant fee for moving his right of

way. :

Plaintiff alleges that DER, through its employ-

ees, defendants Sever, Dembowski, Ericson and

Smeal also violated his rights by preventing him

from controlling erosion along his stream bank by

using tires as rip-rap.

Plaintiff alleges that Penna. State Police,

through Sgt. John Toner, have violated his rights

by prosecuting him in 1984 for falsifying a vehicle

inspection sticker for his “just constructed 1962

VW van.”

Plaintiff alleges that PennDot is responsible for

“willful damage to the ecology of bucolic Tioga

County, for providing, for a period of ten years,

large PennDot dump trucks ... to haul and deposit

a mixture of grass, salt and cinders, to the property of

Defendant Cooper, where it was dumped into the

flood plain, then pushed into the Lambs Creek

bed, effectively driving the Creek more than (150)

feet to the northeast, damaging the private properties

A2

of Creeley, Shick, Scanlin (now deeded to the

World Unicorn Society, Inc.”

Scanlin’s Complaint).

Plaintiff does not make any specific allegation

against the Richmond Township Supervisors in

the complaints.

Plaintiff's original complaint was augmented by

a supplemental complaint filed a month later and

by an amended complaint several weeks later. The

supplemental complaint added further allegations

against the USACE. With the filing of the

amended complaint, plaintiffs sought to add as

defendants individual employees of DER. Leave

of court was not sought for the filing of either

complaint. No leave was required for the filing of

the supplemental complaint pursant to Fed. R.

Civ. P. LS, (a) because no responsive pleading had

yet been filed. Leave was, however, required for

the filing of the second amended complaint. In

the interest of expediting this matter, leave will be

deemed to have been granted nunc pro tunc.

All defendants move to dismiss plaintiff's

Original and amended complaints pursuant to Fed.

R.Civ. P 12(b)(6) for failure to state a claim upon

which relief may be granted. For the reasons

which follow, the complaint will be dismissed as

against all defendants. Plaintiffs motion for

summary judgment based upon defendants’ al-

leged failure to respond to the complaint will be

denied. All other pending motions will be denied

as well.

DISCUSSION

Rule 12(b) motion. In deciding defendants’

motion, we are “required to accept as true all al-

legations in the complaint and all reasonable in-

ferences that can be drawn from them after con-

A3

ne

Struing them in the light most favorable to the

non-movant’_ Jordan’ v. Fox, Rothschild,

O’Brien & Frankel, Inc. 20 F 3d 1250, 1261 (3d

Cir. 1994. “In determining whether a claim

Should be dismissed under Rule 12(b) (6), “we

look” only to the facts alleged in the complaint

and its attachments without reference to other

parts of the record.” Id. Dismissal is not appro-

priate unless “it clearly appears that no relief can

be granted under any set of facts that could be

proved consistently with the plaintiff's allega-

tions” Id.

Section 1983 claims asserted:

Although plaintiff disavows any intention of

asserting a section 1983 claim, he asserts over and

over again that his constitutional rights have been

violated by defendants. (See record document no.

38, p. 2.) The only vehicle for asserting violation

of the same is section 1983, or in the case of

federal defendants, a Bivens action. Bivens V.

Six Unknown Agents of the Federal Bureau of

Narcotics, 403 U.S. 388 (1971).

To recover under section 1983, the plaintiff

must prove that a person acting under color of

state law deprived him of rights, privileges, or

immunities guaranteed by the Constitution or the

laws of the United States. Pokrandt v. Shields,

773 F. Supp. 758 765 E.D. Pa. 1991.

Much of the plaintiffs’ allegations and

discussion of the claims alleged consist of urgings

for government inquiry into local and state gov-

ernment practices in Tioga County. Plaintiffs

misapprehend the purpose of civil litigation. It

cannot properly be used as a tool for probing

vague allegations of wrongdoing in a certain

community by elected or appointed officials, or

A4

government employees. Allegations must be tied

to the violation of specific, legally recognized

rights of the complaining plaintiffs. A defendant’s

conduct must have a close causal connection to

plaintiff's injury for section 1983 liability to at-

tach. Martinez v California, 444 U.S. 277, 285

(1980). Further, negligent conduct is not action-

able under 1983. Davidson v. Cannon, 474 U.S.

344, 347-48 (1986), and Daniels v. Williams, 474

U.S. 327, 328 (1986). Only the purposeful vio-

lation of recognized federal rights is actionable.

Thus, to the extent that the plaintiffs seek a

general government inquiry into alleged wrong-

doing by federal, state, and local officials in the

Tioga County area over the past 18-20 years, he

fails to assert any viable federal claim and his

claims must fail.

Statute of Limitations: Nearly all of the

individual claims asserted are barred by the

statute of limitations applicable to section 1993

claims filed in this Commonwealth. Claims aris-

ing under section 1983 are subject to a two year

statute of limitations. Any claims based on events

which predate the filing date by more than two

years are time-barred. Federal courts apply the

state personal injury statute in 1983 actions. Wil-

son v Garcia, 471 U.S. 261, 276-80 (1985)

Pennsylvania’s statute of limitations applies here,

and under it, the time limit for filing a section

1983 claim is two years. Smith v City of Pitts-

burgh 764, F. 2d 188, 194(3d Cir. 1985), cert.

denied, 474 U.S. 950 (1985) and 42 Pa. Cons.

Stat. Ann., 5524.

When the cause of action accrues on a sec-

tion 1983 claim is a question of federal law. Al-

bright v Oliver, 127 L. Ed. 2d 114,128 n. 6 (1994),

AS

Ait:

(Ginsburg J. concurring). In general, section 1983

claims accrue when the facts which support the

claim are, or should be apparent to a person with a

reasonably prudent regard for his rights and when

the identity of the person or persons responsible

for the alleged violation is known or reasonably

should have been known to the plaintiff. McMil-

lian v Johnson, 1995 Westlaw, 21963 (M. D. Ala.

Jan. 17, 1995), citing Mullinax v McElhenney,

817, F 2d. 711 716 (11th Cir. 1987.) With respect

to most of the claims alleged here, the cause of

action, if any exists, accrued when the events

occurred, well beyond the two year period pre-

ceding the filing of this action.

Plaintiff argues that certain claims are not

subject to dismissal as untimely because, although

the actions of the defendants pre-date the filing by

more than two years, their effects persist. He

argues specifically that although the defendants

placed the concrete slabs in the creek more than

two years before this action was filed, their con-

tinued presence continues to cause further damage

to his stream bank. Arguments along these lines

have been rejected by the United States Supreme

Court. In Delaware State College v. Ricks, 449,

U.S. 250, 256-57 (1980), the Supreme Court re-

jected the contention that because the effect of an

action was felt or manifested within the statutory

period, plaintiffs action should be deemed timely

because it was felt or manifested. The Supreme

Court held that the statute begins to run from the

date of the allegedly wrongful act, not from the

date when its consequences are felt.

Only a few specific events are alleged to

have occurred within the two year period im-

mediately preceding the filing of this action.

A6

Plaintiff alleges that the Coopers, through or with

the assistance of PennDot, have continued to

dump debris into Lambs Creek, causing further

erosion of plaintiff's stream bank. Plaintiffs al-

lege that on April 27, 1995 the Coopers were

responsible for initiating “two unsupportable”

criminal complaints against him, both of which

were later dismissed. Finally, plaintiff alleges that

he has been denied the assistance of DER or the

federal government in solving the erosion prob-

lem along his stream bank.

We discuss below the problems and diffi-

culties inherent to the viability of each of these

claims. One problem which nearly all of these

claims share is plaintiff's failure to allege them in

the pleadings. The possible existence of such

claims is mentioned only in briefs and other fil-

ings, making it exceedingly difficult for either the

court or defendants to determine whether they are

intended to form part of the basis for the claims

asserted in this action or are recited merely as

background.

Scanlin’s reference to the criminal charges

filed against him is a prime example. This inci-

dent is mentioned only in the briefs (record

document No. 57). Further it is recounted, then in

the next paragraph seemingly discounted as a

basis for the claims asserted here. Plaintiff cites it

as a basis for denying defendants’ motion to

dismiss all claims as time-barred, then states “but

the far more serious condition of 15 years of

harassment by defendants Cooper, enlisting

managers of a Federal Agency, professionals of a

State Agency DER ... many of whom will be

shown to be members of Masonic Lodges 247 and

317--- cries out for a hearing in a Federal Court.”

A7

(Record document no. 57 at p. 2)

Scanlin then goes on to state that his ref-

erence to ‘the unwarranted criminal. charges de-

tailed in the above Par. I are easily seen as a

metaphor for the far more serious issue: The un-

relenting effort by Defendants Cooper to silence

the human rights and civil rights messages of

Plaintiffs Scanlin and the World Unicorn Soci-

ety.” (Record document no. 57 at p. 2)

Although we are acutely aware that the

pleadings of pro se plaintiffs must be liberally

construed with an eye toward preserving any po-

tentially viable claims, there are limits to such

construction. Plaintiffs have filed several com-

plaints. Their original complaint consisted of a

narrative supplemented by voluminous attatch-

ments consisting of items ranging from photo-

graphs of the stream bordering plaintiffs’ property

to a publication of the Unicorn Society espousing

its views of and hopes for the world order.

It seems to this court, that the requirement of

plaintiffs have an obligation fairly to apprise the

defendants and the court (which has the task of

separating viable from non-viable claims) of the

essential factual bases for their claims, i.e. the

circumstances about which they are complaining

and what relief they seek for the same.

Plaintiffs’ pleadings consist of a narrative

relating Scanlin’s eighteen-year relationship with

neighbors and government officials, at several

levels. Further, much of what later filings reveal

to be the possible basis for plaintiffs’ claims are

not included in the pleadings at all but merely

discussed in briefs and various other documents

filed. To further compound matters, much of what

plaintiffs discuss, allege etc. and what would

A8

appear to be the basis for their claims, is dis-

avowed by plaintiffs themselves as a basis for the

filing of this action. For example, much of

plaintiffs’ discussion about this case, the claims

pled, etc. revolves around the erosion problems

along the stream bank and Scanlin’s frustration

with the actions of neighboring landowners,

DER’s and PennDOT’s alleged complicity in the

same, and plaintiffs’ frustration with the apparent

unwillingness of the USACE to become involved

and commit funds and resources to resolving the

problem. That impression is confounded, how-

ever, by statements made in the “joint case

management plan” submitted by plaintiffs which

provide: “Plaintiffs sincerely believe distributed

writings and annual ‘SEEKER AFTER JUSTICE’

award to minority recipients have, in large

measure, provoked Defendant Cooper actions

[sic] toward Plaintiffs; Cooper has enmeshed

Gov't. Agency employees into the matter and the

creek problem is only the device and metaphor for

the friction.” (Record document no. 40 at 12.30)

To demand that the court and/or the defendants

cull from numerous filings whether any event

which happened to or affected plaintiff over the

years forms the basis for a viable federal claim is

beyond the realm of reason. It is the plaintiffs who

are bringing these claims, and it is not unrea-

sonable to expect them, at minimum, to identify

for the benefit of the defendants and the court

what events over the course of twenty years of

Scanlin’s lifetime, he complains of as being a

violation of his federal rights.

Having thus determined that we will not pre-

sume intent to assert a federal claim on the basis

of events or incidents mentioned only in passing

A9

ai ac ii i ence ain cia amin

or as examples or metaphors of an allegedly larger

problem, we will nevertheless address the po-

tential viability of claims tied to specific incidents

which occurred within the limitations period.

Alleged dumping in Lambs Creek:

Plaintiffs allege that neighboring landowner

Robert Cooper has borrowed, taken, or received

cinders and various debris from PennDOT which

he has then dumped into the creek which borders

both properties, causing further erosion damage to

plaintiff's creek bank.

Although these allegations may assert a basis for

a state tort action, they do not state a violation of

any federal constitutional right. Plaintiffs’

remedy, if any exists, lies in an action in state court.

Alleged denial of federal and state assistance to

remedy erosion problems:

Plaintiffs allege that within the past two years,

they have been denied the assistance of DER or

the USACE in remedying the erosion problem

along Lambs Creek. Such denials are not a vio-

lation of plaintiffs’ constitutional rights. The only

arguable connection to any federally protected

right would be a possible denial of plaintiff's right

of due process guaranteed by the Fourteenth

Amendment. However, such a claim hinges on

plaintiffs’ ability to establish a property interest in

the benefits to which he claims he is entitled.

There are no allegations which would support

such a showing here.

Alleged criminal complaints:

Plaintiffs allege that on April 27, 1995, the

Coopers were responsible for initiating two

“unsupportable” criminal complaints against him,

both of which were later dismissed. The United

States Supreme Court ruled in Heck v. Humphrey,

Al0

129 L.Ed.2d 383 (1994) that a civil rights plaintiff

cannot maintain a cause of action arising out of a

State criminal charge, unless and until he can

demonstrate that the conviction or sentence has

been “reversed on direct appeal, expunged by

executive order, declared invalid by a state tri-

bunal authorized to make such determination, or

called into question by a federal court’s issuance

of a writ of habeas corpus.” Id. at 394. The Court

analogized such claims to the tort of malicious

prosecution, one element of which is a showing

that the underlying criminal proceeding termi-

nated in favor of the accused.

Here, plaintiff arguably satisfies that criterion by

alleging that the charges filed against him were

dismissed. However, he appears to be alleging

such claims against the Coopers, private citizens,

not against the local officials responsible for

carrying out the prosecution. Such claims are

viable under section 1983 only if plaintiff can

establish that the Coopers conspired with state or

local officials to bring about a baseless prosecu-

tion. Such allegations are lacking.

Conspiracy allegations:

Plaintiffs’ claims against the Coopers for the

violation of their civil rights can survive only if

supported by allegations that the Coopers, private

citizens, conspired with state actors to deprive |

plaintiffs of their federal rights. The closest |

which plaintiffs come to making such allegations

are averments that Robert Cooper is a Mason, as

are many state policemen and other state em-

ployees. Plaintiffs argue that this common

membership, along with plaintiffs’ interpretation

of Masonic policies and tenets are proof that Ma-

sons use their membership to affect or alter state

All

EE

policy.

While it is true that heightened pleading re-

quirements no longer apply to civil rights claims,

or by implication, to allegations of conspiracy,

Leatherman v. Tarrant County Narcotics Intelli-

gence & Coordination Unit, 507 U.S. 163 (1993),

some factual averments must support a contention

that a private citizen conspired with a state actor.

Such averments must consist of more than

speculation based on the mere fact of membership

in the same organization or social contacts.

Claims asserted against Commonwealth agen-

cies:

Plaintiffs’ civil rights claims for monetary

damages against the Pennsylvania State Police,

PennDOT, and DER are subject to dismissal on

another ground as well. Commonwealth agencies

are not subject to such relief under the United

States Supreme Court’s ruling in Will v. Michi-

gan, 491 U.S. 58 (1989).

Actions filed against a Commonwealth em-

ployee in his or her official capacity for monetary

damages are likewise barred on Eleventh

Amendment grounds, Edelman v. Jordan, 415

U.S. 651, 662-63 (1974).

The only such claims which are permitted

against a Commonwealth agency are those for

prospective injunctive relief.

Punitive damages:

Punitive damages are not recoverable against a

municipality. City of Newport v. Fact Concerts,

Inc., 453 U.S. 247, 266-68 (1981). See also:

Fletcher v. O’Donnell, 867 F.2d 791 (3d Cir.

1989); Reitz v. Persing, 831 F.Supp. 410,

(M.D.Pa. 1993) and Carroll v. Bristol Township,

827 F.Supp. 332 (E.D.Pa. 1993).

Al2

Plaintiff's claims for punitive damages against

the Commonwealth agencies and against state

employees are subject to dismissal on that ground.

See Brandon v. Holt, 469 U.S. 464, 467-77 (1985).

State claims:

It is apparently plaintiffs’ intention to assert

only federal claims, although this is not entirely

clear from the pleadings and other documents

before us.

If any state claims are alleged, they are dis-

missed. No basis for the exercise of diversity

jurisdiction is alleged, and state-based claims

cannot otherwise stand in this court. Because no

federally-based claims survived and this action is

not yet past the pleading stage, we decline to

exercise supplemental jurisdiction over state

claims which it is plaintiffs’ intention to assert

before this court.

Plaintiffs’ motions for default or summary

judgment:

Plaintiffs move for default or for entry of

summary judgment against various defendants on

the grounds that they failed to file a timely re-

sponse to the complaint. All defendants against

which plaintiffs so move did, in fact, file a timely

response to the complaint in the form of a Rule

12(b) motion. Plaintiffs’ motions for default or

Summary judgment against the same will, there-

fore, be denied.

Leave to amend denied:

Plaintiffs have already amended and/or sup-

plemented the complaint twice. The last

amendment was filed after defendants moved to

dismiss, alerting plaintiffs to potential defects in

his pleadings, which have nonetheless gone un-

remedied. Moreover, most of the defects iden-

Al3

tified by this court as a basis for dismissal cannot

be remedied by further amending the pleadings.

Most of plaintiffs’ claims are time-barred. Since

the defects in the claims dismissed lie in the na-

ture of the claim asserted, not in the insufficiency

of the facts pled in support of those claims, no

purpose would be served by granting leave to

further amend. Leave to amend will, therefore, be

denied, and the complaint will be dismissed with

prejudice.

“o/ Dy ey gE 29

James F. McClure, Jr.

United States District Judge

Al4

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF

PENNSYLVANIA

JOHN J. SCANLIN, etal. : 4:CV-95-1012

Plaintiffs : (Judge McClure)

VS.

MR. AND MRS. ROBERT COOPER, et al.,

Defendants

ORDER

February 21, 1996

For the reasons stated in the accompanying

memorandum, IT IS ORDERED THAT:

1. Defendants’ motions to dismiss, consisting

of

a) a Rule 12(b) 1..,tion by defendant Richmond

Township (record document no. 17);

b) a Rule 12(b) motion by defendants Mr. and

Mrs. Cooper (record document no. 18);

c) a Rule 12(b) motion by the Pennsylvania

State Police, the Pennsylvania Department of

Environmental Resources and the Pennsylvania

Department of Transportation (the Common

wealth defendants) and their employees named

as defendants (record document no. 36);

d) a Rule 12(b) motion by the Commonwealth

defendants to dismiss plaintiffs’ second

amended complaint (record document no. 48);

e) a Rule 12(b) motion by the United States

Army Corps of Engineers to dismiss plaintiffs’

complaint (record document no. 51);

are granted.

2. All claims asserted against defendants are

dismissed with prejudice and without leave to

amend.

3. All other outstanding motions consisting of:

a) Plaintiffs’ motion for the case to be placed

Al5

on an expedited track (record document no. 14);

b) Plaintiffs’ motion to add additional

defendants (record document no. 15);

c) Plaintiffs’ motion for summary judgment in

favor of the Coopers (record document no. 22);

d) Plaintiffs’ motion for summary judgment in

favor of Richmond Township (record document

no. 24);

e) Plaintiffs’ motion for default against

defendants Koeppel and Gettle of the United

States Army Corps of Engineers (record

document no. 41);

f) Plaintiffs’ motion for default against the

United States Army Corps of Engineers (record

document no. 42);

g) Plaintiffs’ motion for an order compelling

all defendants “to respond forthwith” (record

document no. 59);

h) Plaintiffs’ motion for an order compelling

the Coopers to produce certain documents

(record document no. 61);

i) Plaintiffs’ motion for a March, 1996 trial

date (record document no. 63);

are denied.

4. The clerk is directed to close the file.

ee ed le

James F. McClure, Jr.

United States District Judge

Al6

UNITED STATES COURT OF APPEALS FOR

THE THIRD CIRCUIT

No. 96-7149

JOHN J. SCANLIN, Citizen and CEO World

Unicorn Society, Inc.;

THE WORLD UNICORN SOCIETY, INC.,

a not-for-profit humanitarian organization

Appellants

V

ROBERT COOPER, Mr. and Mrs.; U.S. ARMY

CORPS OF ENGINEERS;

DEPARTMENT OF ENVIRONMENTAL

RESOURCES,

COMMONWEALTH OF PENNSYLVANIA;

PA STATE POLICE; RICHMOND TWP.

BOARD OF SUPERVISORS;

PA DEPT OF HIGHWAYS, “PENNDOT”;

R. KOEPPEL; A. GETTLE; R. YOWELL; A

SEVER; P. DEMBOWSKI; D. SMEAL; D.

ERICSON; J. TONER; CORPORAL HERBST;

T. BRYANT

On Appeal from the United States District Court

for the Middle District of.Pennsylvania

(D.C. No. 95-cv-01012)

District Judge: Hon. James F. McClure, Jr.

Submitted Pursuant to Third Circuit LAR

34.1(a)

August 28, 1996

Before: SLOVITER, Chief Judge

NYGAARD and WEIS, Circuit Judges

JUDGMENT ORDER

After consideration of all contentions raised by

appellants, it is

ADJUDGED and ORDERED that the judg-

ment of the district court entered February 22,

1996 be and is hereby affirmed. Costs taxed

Al7

against appellants.

Attest: By the Court

o/ 9

P. Douglas Sisk, Clerk Chief Judge

UNITED STATES COURT OF APPEALS FOR

THE THIRD CIRCUIT

No. 96-7149

JOHN J. SCANLIN, Citizen and CEO World

Unicorn Society, Inc.;

THE WORLD UNICORN SOCIETY, INC.,

a not-for-profit humanitarian organization

Appellants

V.

ROBERT COOPER, Mr. and Mrs.; U.S. ARMY

CORPS OF ENGINEERS;

DEPARTMENT OF ENVIRONMENTAL RE-

SOURCES, COMMONWEALTH OF PENN-

SYLVANIA; PA STATE POLICE; RICHMOND

TWP. BOARD OF SUPERVISORS;

PA DEPT OF HIGHWAYS, “PENNDOT”; R.

KOEPPEL; A. GETTLE; R. YOWELL; A

SEVER; P. DEMBOWSKI; D. SMEAL; D.

ERICSON; J. TONER; CORPORAL HERBST;

T. BRYANT

SUR PETITION FOR REHEARING

Present: SLOVITER, Chief Judge, BECKER,

STAPLETON, MANSMANN,

GREENBERG, SCIRICA, COWEN,

NYGAARD, ALITO, ROTH, LEWIS,

McKEE, and WEIS, * Circuit Judges

The petition for rehearing filed by

Appellant John J. Scanlin, Pro Se

in the above-entitled case having been submitted

to the judges who participated in the decision of

Al8

this court and to all the other available circuit

judges of the circuit in regular active

service, and no judge who concurred in the de-

cision having asked for rehearing, and a majority

of the circuit judges of the circuit in regular active

service not having voted for rehearing by the

court en banc, the petition for rehearing is denied.

By the Court

Dated: OCT 16 1996 “s/ ic”

Chief Judge

Al9