                                                                                                                           Opinions of the United
2007 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


4-17-2007

Jackman v. McMillan
Precedential or Non-Precedential: Non-Precedential

Docket No. 06-2474




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Recommended Citation
"Jackman v. McMillan" (2007). 2007 Decisions. Paper 1273.
http://digitalcommons.law.villanova.edu/thirdcircuit_2007/1273


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BLD-81                                             NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT

                                      NO. 06-2474
                                   ________________

                             DONALD G. JACKMAN, JR.,

                                            Appellant

                                             v.

  CAROL A. MCMILLAN; BONNIE M. SCHEERBAUM; DENNIS RICKARD; TIM
  MCCUNE; JOHN R. HEVEY II; SUEANN WEIDNER; EDWARD W. JACKMAN;
                        BILL BIRCKBICHLER
                ____________________________________

                   On Appeal From the United States District Court
                       For the Western District of Pennsylvania
                            (W.D. Pa. Civ. No. 06-cv-00051)
                      District Judge: Honorable Maurice B. Cohill
                   _______________________________________
Submitted For Possible Dismissal Under 28 U.S.C. § 1915(e)(2)(B) or Summary Action
                   Under Third Circuit LAR 27.4 and I.O.P. 10.6
                                   December 21, 2006

             Before: MCKEE, FUENTES AND ROTH, CIRCUIT JUDGES

                                  (Filed: April 17, 2007)

                               _______________________

                                      OPINION
                               _______________________

PER CURIAM

       Donald Jackman appeals from the district court’s order, entered April 12, 2006,

dismissing his complaint for failure to state a claim upon which relief may be granted.
See 28 U.S.C. 1915(e)(2)(B)(ii). For the following reasons, we will summarily affirm the

district court’s decision.

       In March 2006, Jackman, a prisoner, filed a complaint, in forma pauperis, against

various individual defendants including Carol A. McMillan, with whom he formerly

shared a residence, six additional private individuals,1 Dennis Rickard, Butler County

Sheriff, and Tim McCune, an apparent Butler County official. Jackman alleged

violations of various federal laws by the parties of which 42 U.S.C. § 1983 is most

pertinent.2 In his complaint, Jackman claimed that commencing in March 2000, and

continuing thereafter until March 2004, numerous valuable personal items which he

owned, or jointly owned with McMillan, were disposed of without his authority or

permission and without his receiving any proceeds from the sales.3 In an attempt to


       1
       Most of these individuals were involved to some degree in an auction of
Jackman’s property which we describe in further detail infra.
       2
         In his complaint, Jackman also claimed that the following federal statutes were
violated: 42 U.S.C. § 1981(a), 42 U.S.C. § 1982, 42 U.S.C. § 1985(3), 42 U.S.C. § 1986,
42 U.S.C. § 1987, and 42 U.S.C. § 1988(a-c). These additional claims, though possibly
not requiring an inquiry into the presence of state action, are plainly inapplicable because
Jackman has not alleged any private acts of racial discrimination, see Young v. Int’l Tel.
& Tel. Co., 438 F.2d 759, 760 (3d Cir. 1971)(construing §§ 1981 and 1982), invidious
class-based discriminatory animus, see Farber v. City of Paterson, 440 F.3d 131, 134-43
(3d Cir. 2006)(construing § 1985(3)), knowledge of a § 1985 conspiracy, see Clark v.
Clabaugh, 20 F.3d 1290, 1295 (3d Cir. 1994)(construing 42 U.S.C. § 1986), or a civil
rights act violation, see Hernandez v. Kalinowski, 146 F.3d 196, 199 (3d Cir.
1998)(construing § 1988). Thus, we confine our analysis to § 1983.
       3
         Jackman specifically alleged that McMillan acting alone, or in concert with
others, conducted an auction in March 2004 disposing of much of his personal property
without approval. Jackman claimed that the value of this property exceeded $260,000.

                                             -2-
prevent the unauthorized loss of this property, Jackman stated that “weeks prior to and

almost two years after auction[,] attempts were made to resolve this matter thru [sic] the

Butler County DA’s Office and the Sheriff’s Office,” but to no avail. Importantly, as

clarified in Jackman’s objections to the magistrate judge’s report and recommendation

(“report and recommendation”), there was “‘NO’ Sheriff’s sale or order by any court to

dispose of the property in question.” Rather Jackman’s attempts to enlist the help of the

Sheriff and McCune were met merely with inaction.4

       In accordance with the substance of the report and recommendation, the district

court dismissed Jackman’s complaint, under Fed R. Civ. Proc. 12(b)(6), because Jackman

failed to state a claim upon which relief could be granted pursuant to § 1983. See 28

U.S.C. § 1915(e)(2)(B)(ii). Jackman filed a timely notice of appeal.5

       We agree with the district court that Jackman cannot make out a prima facie claim

under § 1983. A § 1983 claim must be based on a right secured by the Constitution and

laws of the United States. See 42 U.S.C. § 1983. Further, “[t]o make out a prima facie

case under § 1983, the plaintiff must demonstrate that a person, acting under color of law,



       4
         Though the district court stated that Jackman alleged that the “Sheriff proceeded
with the sale of plaintiff’s asserts with knowledge that he was unauthorized to do so,” it is
clear from Jackman’s objection that the Sheriff was not actually involved in the auction of
his property and thus merely failed to prevent it from occurring.
       5
         We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291. We possess
the option to summarily affirm the district court’s decision pursuant to Third Circuit LAR
27.4 and I.O.P. 10.6.


                                             -3-
deprived him of a federal right.” Berg v. County of Allegheny, 219 F.3d 261, 268 (3d

Cir. 2000)(citing Groman v. Township of Manalapan, 47 F.3d 628, 633 (3d Cir. 1995)).

       Under the circumstances related in his complaint, Jackman cannot show the

deprivation of a constitutional right through state action because his claims amount to

nothing more than inaction on the part of the public officials. “If . . . conduct satisfies the

state action requirement of the Due Process Clause, then it also qualifies as action ‘under

color of state law’ for § 1983 purposes.” Abbott v. Latshaw, 164 F.3d 141, 145 (3d Cir.

1998). Governmental defendants, however,

       normally can be held responsible for a private decision only when it has
       exercised coercive power or has provided such significant encouragement,
       either overt or covert, that the choice must in law be deemed to be that of
       the State. [] Mere approval of or acquiescence in the initiatives of a private
       party is not sufficient to justify holding the State responsible for those
       initiatives under the terms of the Fourteenth Amendment.

Blum v. Yaretsky, 457 U.S. 991, 1004-05 (1982)(internal citations omitted); see also

Abbott, 164 F.3d at 147 (holding that affirmative intervention and aid in a private

repossession constitutes a sufficient basis for a reasonable trier of fact to find that a law

enforcement officer played a role in violating a claimant’s constitutional rights). As

Jackman himself alleged, the auction of his property was neither affirmatively assisted

nor conducted by either the Sheriff or McCune and, at most, they merely failed to act

upon Jackman’s protestations; thus, the actions of both could not assume the character of




                                              -4-
state action.6 See Abbott, 164 F.3d at147.
        Given our preceding discussion, we find that there was no need to provide
Jackman an opportunity to further amend his complaint because, under the facts as
clarified by Jackman in additional filings, any further amendment to Jackman’s complaint
would prove futile. See Grayson v. Mayview State Hosp., 293 F.3d 103, 108 (3d Cir.
2002); see also Shane v. Fauver, 213 F.3d 113, 115-16 (3d. Cir. 2000). Jackman filed an
objection to the report and recommendation of the magistrate judge and a supplement to
that objection. We have relied upon these documents, combined with Jackman’s original
complaint, in our description of the facts of this case and they have only served to further
clarify the futility of Jackman’s allegation. Cf. Marran v. Marran, 376 F.3d 143, 156 n.4
(3d Cir. 2004).
        Because this appeal presents us with no substantial question, we will summarily
affirm the district court’s order. See Third Circuit LAR 27.4 and I.O.P. 10.6.




       6
         We note that, in some situations, private defendants may be classified as state
actors, pursuant to §1983, if they conspire with state actors to deprive a claimant of his
constitutional rights. See Abbott, 164 F.3d at 147-48. Significant concerted action,
however, must exist between state actors and a private individual in order to merit such a
characterization; thus, given our disposition on the issue of state action on the part of the
named officials in this case, we cannot find state action on behalf of the private
individuals named in Jackman’s complaint.

                                             -5-
