ALD-115                                                        NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                       No. 16-4120
                                       ___________

                                 GERALD LEE FISHER,
                                              Appellant

                                             v.

                    UNITED STATES DEPARTMENT OF JUSTICE
                      ____________________________________

                     On Appeal from the United States District Court
                        for the Western District of Pennsylvania
                             (D.C. Civil No. 2-16-cv-01618)
                      District Judge: Honorable Arthur J. Schwab
                      ____________________________________

       Submitted for Possible Dismissal Pursuant to 28 U.S.C. § 1915(e)(2)(B) or
         Summary Action Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6
                                  January 26, 2017
            Before: MCKEE, JORDAN and RESTREPO, Circuit Judges

                            (Opinion filed: February 14, 2017)
                                        _________

                                        OPINION*
                                        _________

PER CURIAM

       Gerald Lee Fisher appeals the District Court’s order dismissing his complaint as

frivolous. For the reasons below, we will dismiss the appeal as frivolous.


*
 This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
       In his complaint, Fisher alleged that an attorney from the Department of Justice

sent him a letter requesting that they speak briefly before a case management conference

regarding another District Court case Fisher was litigating. Fisher contended that this

letter violated his Fourth Amendment right to be left alone by the Government as well as

his rights to substantive and procedural due process. He asserted that the attorney’s

actions caused him emotional distress.

       The District Court determined that an allegation of harm from litigating a lawsuit

Fisher brought himself did not allege a cause of action, and it would be futile to allow

him to amend his complaint. The District Court noted that by filing a lawsuit, Fisher had

subjected himself to the rules of procedure and practice of the District Court. One of

these rules, Fed. R. Civ. P. 26(f), requires the parties to confer before a scheduling

conference. The District Court dismissed the complaint as frivolous.

       Because Fisher is proceeding in forma pauperis on this appeal, we must analyze

his appeal for possible dismissal pursuant to 28 U.S.C. § 1915(e)(2)(B). Under

§ 1915(e)(2)(B)(i), we must dismiss an appeal if the appeal is frivolous or malicious. An

action or appeal can be frivolous for either legal or factual reasons. Neitzke v. Williams,

490 U.S. 319, 325 (1989).

       We agree with the District Court that Fisher’s complaint was frivolous. It also

failed to state a claim. On appeal, Fisher argues that he had a Fourth Amendment right to

be left alone by the Government. However, the Fourth Amendment protects, in relevant

part, “[t]he right of the people to be secure in their persons, houses, papers, and effects,
                                              2
against unreasonable searches and seizures.” The letter from the Government did not

violate the Fourth Amendment. By sending the letter, the attorney did not search or seize

anything of Fisher’s. Moreover, as pointed out by the District Court, it was Fisher

himself who initiated contact with the Government by bringing the other lawsuit.

       Fisher also argues that the letter violated his right to procedural and substantive

due process. In order to state a claim of the violation of the right to procedural due

process, a litigant must allege that the Government deprived him of a protected interest in

life, liberty, or property and the deprivation occurred without due process. Burns v. Pa.

Dep’t. of Corr., 544 F.3d 279, 285 (3d Cir. 2008). Fisher has not shown that he has been

deprived of a protected interest. While Fisher asserts that the alleged harm caused by the

letter was foreseeable based on his medical issues, we see nothing in the language of the

letter quoted by Fisher that would cause harm. Fisher alleged that the attorney wrote that

he would like to “speak to [Fisher] briefly about [his] case prior to the initial case

management conference and imposition of a discovery schedule.” We note that Fisher

continued to litigate the other District Court case despite his allegation that receipt of the

letter caused him emotional distress.

       In order to state a claim of a violation of his right to substantive due process,

Fisher needed to allege conduct that shocks the conscience. Cty of Sacramento v. Lewis,

523 U.S. 833, 847-49 (1998). He has not done so.

       For the above reasons, we will dismiss the appeal as frivolous.


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