                                                                                                                           Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


10-30-2008

Mash v. Twp Haverford Dept
Precedential or Non-Precedential: Non-Precedential

Docket No. 07-3642




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                                                         NOT PRECEDENTIAL


                  UNITED STATES COURT OF APPEALS
                       FOR THE THIRD CIRCUIT

                                 _________

                                 No.07-3642
                                 _________


                             RONALD MASH,
                                trading as
                            EAGLE MASONRY


                                      v.

TOWNSHIP OF HAVERFORD DEPARTMENT OF CODES ENFORCEMENT; LORI
   HANLON, Widdop Department of Codes Enforcement of Haverford Township;
       DAVID COOPER, Code Enforcement Officer, Haverford Township;
    STEPHEN D'EMILLO, President of the Haverford Township Commissioners;
      ROBERT E. TRUNBULL, 3rd Ward Commissioner; FRED C. MORAN,
       4th Ward Commissioner; JOHN CAPUZZI, 5th Ward Commissioner;
  LARRY HOLMES, 6th Ward Commissioner; JAMES E. MCGARRITY, 7th Ward
 Commissioner; TOM BROIDO, 8th Ward Commissioner; CAROL A. MCDONALD,
                          9th Ward Commissioner


                                Ronald Mash,

                                  Appellant


                           ___________________


                 Appeal from the United States District Court
                   for the Eastern District of Pennsylvania
                               No.06-cv-04479
                    ( The Honorable L. Felipe Restrepo)


                           ___________________
                         Submitted Pursuant to Third Circuit LAR 34.1(a)
                                      September 11, 2008


                       Before: McKEE, SMITH and WEIS, Circuit Judges




                                       (Filed: October 30, 2008 )




                                   OPINION OF THE COURT

McKEE, Circuit Judge

       Ronald Mash appeals the district court’s grant of summary judgment in favor of the

defendants and the court’s denial of his motion for partial summary judgment that was based on

the contention that he is entitled to attorneys fees because he is the “prevailing party.” For the

reasons that follow, we will affirm.

                                                   I.

       Because we write primarily for the parties, it is not necessary to recite the facts or

procedural history of this case except insofar as may be helpful to our brief discussion.

       In order to establish a claim under § 1988, Mash must prove a deprivation of a “right

secured by the Constitution and the laws of the United States . . . by a person acting under the

color of state law.” Kneipp v. Tedder, 95 F.3d 1199, 1204 (3d Cir. 1996). Mash argues that he is

the prevailing party in his civil rights suit because the Township’s Board of Commissioners

refused to schedule a hearing on the appeal of his permit denial until he filed this civil rights

action. Mash’s argument is based on the “catalyst” theory, whereby a plaintiff is entitled to

                                                   2
attorney’s fees if his/her suit was a “catalyst for the vindication of his constitutional rights.”

Staten v. Housing Auth., 638 F.2d 599, 605 (3d Cir. 1980). However, in Buckhannon v. West

Virginia, 532 U.S. 598 (2001), the Supreme Court held that a “defendant’s voluntary change in

conduct, although perhaps accomplishing what the plaintiff sought to achieve by the lawsuit,

lacks the necessary judicial imprimatur on the change[,]” to support a claim that a plaintiff is a

prevailing party. Buckhannon, 532 U.S. at 605. The Court thus rejected the “catalyst” theory

that Mash’s claim rests upon. Id.1 Under the Buckhannon rule, Mash can not establish that he is

a prevailing party. Therefore, this record does not support his claim that he is entitled to

attorney’s fees.

         Mash additionally argues that the district court’s grant of summary judgment to the

defendants was based on “facts not of record,” because the court erroneously thought that he was

asserting improper retaliation for his earlier suit against some of the defendants. Mash asserts

that the First Amended Complaint that was before the court did not allege retaliation for his 2002

suit that he brought under Pennsylvania’s “Right to Know” law. Rather, argues Mash, that claim

was in a subsequent Amended Complaint that he was never allowed to file.

         Although the district court denied Mash’s requests for a second and third Amended

Complaint specifically alleging improper retaliation, his attack on the district court’s denial of his

motion for partial summary judgment ignores the fact that he raised the issue of retaliation for his




1
  Pursuant to the OPEN Government Act, 5 U.S.C. § 552(A)(4)(E)(ii) (2008), it is no longer necessary to show that
the material alteration of the parties’ position has the ‘judicial imprimatur.’ Even though the wording of the statute
has been changed by amendment, we need not consider the impact here, because the change was enacted after M ash
filed this appeal and Mash does not argue it should be applied in his complaint.



                                                           3
prior “Right to Know” lawsuit in oral argument as the basis for the defendant’s alleged

retaliatory acts against him. See Supp. App. at 5, 11-12, 22

       Moreover, assuming arguendo that Mash only raised the 2002 retaliation facts in the

complaints that he was not allowed to file, the district court did not err because it would have

been futile to allow the proffered amended complaints. A court does not err in refusing to allow

an amendment to a complaint, where the amendment does not cure the problem with the initial

complaint. See Lorenz v. CSX Corp., 1 F.3d 1406, 1413-14 (3d Cir. 1993) (citing Foman v.

Davis, 371 U.S. 178, 182 (1962) (explaining that under F.R.C.P. 15(a), in the absence of undue

prejudice to nonmoving party, denial of amendment must be based on bad faith, dilatory motives,

truly undue delay, failure to cure deficiency or futility of amendment) (emphasis added)).

       The district court correctly reasoned that even assuming that Mash’s assertions were true,

the record did not allow a reasonable fact finder to conclude that the defendants were liable

because Mash’s many allegations were not supported by the record. Accordingly, the district

court was correct in granting summary judgment to the defendants, and in denying Mash’s

motion for partial summary judgment.

                                                II.

       For all of the above reasons, we will affirm the district court’s denial of Mash’s Partial

Motion for Summary Judgment and affirm the grant of summary judgment to the defendants.




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