                                                          NOT PRECEDENTIAL

                  UNITED STATES COURT OF APPEALS
                       FOR THE THIRD CIRCUIT
                            ___________

                                No. 10-1955
                                ___________

                           GEORGE L. KOYNOK,
                                          Appellant
                                   v.

             THOMAS R. LLOYD, Mayor of Dormont Borough;
    JOSEPH M. COSTANZO, former President of Dormont Borough Council;
      KRISTEN DENNE, former Assistant Manager of Dormont Borough;
          THOMAS H. AYOOB, III, Solicitor of Dormont Borough;
       PATRICK KELLY, Building Inspector/Code Enforcement Officer;
  RUSSELL J. MCKIBBEN, former interim Borough Manager and Police Chief of
              Dormont Borough, BOROUGH OF DORMONT
               ____________________________________

                On Appeal from the United States District Court
                   for the Western District of Pennsylvania
                         (D.C. Civil No. 06-cv-1200)
                 District Judge: Honorable Arthur J. Schwab
                 ____________________________________

               Submitted Pursuant to Third Circuit LAR 34.1(a)
                              January 3, 2011
           Before: SLOVITER, FISHER AND WEIS, Circuit Judges

                        (Opinion filed January 5, 2011)
                                 _________

                                  OPINION
                                  _________

PER CURIAM.

                                      1
              George Koynok appeals from an order of the District Court granting

summary judgment to Dormont Borough and several of its past and present employees

(Appellees). We will affirm.

                                              I.

              For over fifty years Koynok has owned a multi-level residential building at

2850 Glenmore Avenue in Dormont Borough, which is part of the Pittsburgh

metropolitan area. After the Dormont Borough Zoning Hearing Board (the ZHB) and the

Pennsylvania courts rejected Koynok‟s recent attempts to have his property function in

part as a for-profit boardinghouse, Koynok filed suit in federal court. The District Court

concluded that Koynok‟s “cause of action is nothing more than a „spin-off‟ of a state

court action, that it suffers a fatal Rooker-Feldman defect, and that it must, therefore, be

dismissed with prejudice.”1 We vacated the District Court‟s decision and remanded

because the record was insufficiently developed for a proper Rooker-Feldman analysis.

See Koynok v. Lloyd, 328 F. App‟x 133, 137-38 (3d Cir. 2009).

              Thereafter, Koynok moved for and was granted leave to file an amended

complaint. In the amended complaint, Koynok essentially claimed that, in preventing


1 The District Court was referring to the Rooker-Feldman doctrine, which “takes its
name from the only two cases in which the Supreme Court has applied it to defeat federal
subject-matter jurisdiction: Rooker v. Fidelity Trust Co., 263 U.S. 413 (1923), and
District of Columbia Court of Appeals v. Feldman, 460 U.S. 462 (1983).” Great W.
Mining & Mineral Co. v. Fox Rothschild LLP, 615 F.3d 159, 164 (3d Cir. 2010).


                                              2
him from operating 2850 Glenmore Avenue as a boardinghouse, Appellees violated

Koynok‟s Fourteenth Amendment rights to procedural due process, substantive due

process, and equal protection under the law. Appellees filed their answer to Koynok‟s

amended complaint and then moved under Federal Rule of Civil Procedure 12(c) for

judgment on the pleadings. The District Court denied Appellees‟ motion “without

prejudice to . . . raising the issues set forth therein in a motion for summary judgment at

the appropriate time following discovery.” Discovery and opposing motions for

summary judgment followed. By order entered March 5, 2010, the District Court granted

Appellees‟ motion for summary judgment and denied Koynok‟s motion for summary

judgment. Koynok appealed.

                                             II.

              We have appellate jurisdiction under 28 U.S.C. § 1291, and our review of

the District Court‟s grant of summary judgment is plenary. Spence v. ESAB Group, Inc.,

623 F.3d 212, 216 (3d Cir. 2010). We apply the same test as the District Court. Id.

“Hence, summary judgment is appropriate when there „is no genuine issue as to any

material fact‟ and the moving party is „entitled to judgment as a matter of law.‟”

Alabama v. North Carolina, --- U.S. ---, 130 S. Ct. 2295, 2308 (2010) (quoting Fed. R.

Civ. P. 56(c)).

                                             III.

              Koynok‟s opening brief is filled with arguments that are not germane to

                                              3
whether the District Court erred in granting summary judgment for Appellees on

Koynok‟s Fourteenth Amendment claims.2 Because Koynok has been preceding pro se,

we have liberally construed his arguments on appeal. See Erickson v. Pardus, 551 U.S.

89, 94 (2007) (per curiam). Nevertheless, we conclude that the District Court‟s grant of

summary judgment for Appellees was correct.

              First, we agree with the District Court that Appellees were entitled to

summary judgment on Koynok‟s procedural due process claim. In particular, the District

Court correctly determined that Koynok cannot show that he was deprived of due process

during the 2003 ZBH proceedings because Koynok failed to take advantage of all

available avenues for appellate review. See Alvin v. Suzuki, 227 F.3d 107, 116 (3d Cir.

2000) (“In order to state a claim for failure to provide due process, a plaintiff must have

taken advantage of the processes that are available to him or her . . ..”). We also

conclude that, with respect to the subsequent “special exception” action, Koynok was

afforded all process he was due; it is evident from the record that both the ZHB and the

Pennsylvania courts conducting appellate review took great pains to discern and


2 For example, Koynok argues that this Court must void the 2006 ZHB decision denying
his request for a “special exception” to use 2850 Glenmore Avenue as a boardinghouse.
We cannot and will not. The 2006 ZHB decision was upheld by the Pennsylvania
Supreme Court and, as our previous opinion in this case should have made clear to
Koynok, “[t]he Rooker-Feldman doctrine divests federal courts of subject matter
jurisdiction where a federal action „would be the equivalent of an appellate review‟ of a
state court judgment.” Koynok, 328 F. App‟x at 136 (quoting FOCUS v. Allegheny
County Court of Common Pleas, 75 F.3d 834, 840 (3d Cir. 1996)).

                                              4
comprehensively evaluate Koynok‟s rather convoluted arguments.

       Second, we agree with the District Court that Appellees were entitled to summary

judgment on Koynok‟s substantive due process claim. “Land-use decisions are matters

of local concern, and such disputes should not be transformed into substantive due

process claims based only on allegations that government officials acted with „improper‟

motives.” United Artists Theatre Circuit, Inc. v. Twp. of Warrington, PA, 316 F.3d 392,

402 (3d Cir. 2003). Instead, a land-use decision “violates substantive due process only

when it shocks the conscience.” Id. at 399-400. Such a characterization is reserved for

truly egregious official conduct, see id., and not for the conduct at issue in Koynok‟s

ongoing dispute with Dormont Borough. See Eichenlaub v. Twp. of Indiana, 385 F.3d

274, 286 (3d Cir. 2004).3

              Finally, we agree with the District Court that Appellees were entitled to

summary judgment on Koynok‟s equal protection claim. To withstand summary

judgment, Koynok needed to identify at least one disputed material fact that would result

in a genuine issue as to whether the ZHB intentionally and with no rational basis treated


3 The record suggests that for many years Appellees knew of, but were not overly
concerned with, Koynok‟s non-conforming use of 2850 Glenmore Avenue as a
boardinghouse. However, the non-conforming use roused Koynok‟s neighbors, who
complained of parking and property value issues. (2003 ZHB decision, Supp. App‟x at
51); (E-mail to Patrick Kelly, Supp. App‟x at 187) (“The northern side of Glenmore
Avenue is one of the borough‟s more highend [sic] streets, and those of us who live there
would like to keep it that way.”). There is nothing conscience-shocking about Appellees‟
concerted effort to simultaneously alleviate public concern and enforce local law.

                                             5
Koynok differently from his peers when the requests for authorization to use 2850

Glenmore Avenue as a boardinghouse were rejected. See Village of Willowbrook v.

Olech, 528 U.S. 562, 565 (2000) (per curiam).4 That standard “is doubtless difficult for a

plaintiff to meet in a zoning dispute,” Eichenlaub, 385 F.3d at 286, and Koynok produced

no evidence in the District Court showing that he could meet it.5

                                             IV.

              For the reasons given in this opinion, we will affirm the judgment of the

District Court.




4 As Appellees correctly note, “Koynok does not plead that he is a member of a suspect
class,” but “the court can imply that he is asserting his equal protection claim as a „class
of one.‟” (Appellees‟ Br. at 26.)

5 In their motion for summary judgment, Appellees argued that “Koynok has failed to
state a cause of action as to the individual Defendants” on the basis of qualified
immunity. Because Koynok put forth no evidence that the individual defendants violated
his constitutional rights, as explained above, the District Court correctly determined that
they were entitled to qualified immunity. See Pearson v. Callahan, --- U.S. ---, 129 S. Ct.
808, 815-16 (2009).
                                              6
