                                                                   NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ____________

                                       No. 16-3062
                                      ____________

                                   JOHN HARGRAVE,
                                             Appellant

                                             v.

                   CHARLES RAMSEY; CITY OF PHILADELPHIA
                               ____________

                     On Appeal from the United States District Court
                         for the Eastern District of Pennsylvania
                               (E.D. Pa. No. 2-15-cv-00201)
                      District Judge: Honorable Gerald A. McHugh
                                      ____________

                   Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
                                    April 6, 2017

             Before: CHAGARES, SCIRICA and FISHER, Circuit Judges.

                                   (Filed: May 9, 2017)
                                      ____________

                                        OPINION*
                                      ____________

FISHER, Circuit Judge.

       John Hargrave was discharged from his position as a Philadelphia police officer in

2012. He sued the City of Philadelphia and its then-Police Commissioner, Charles

       *
        This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7
does not constitute binding precedent.
Ramsey, arguing that his termination was unconstitutional. The District Court rejected

Hargrave’s claims. We will affirm.

                                             I

       The Philadelphia Police Department has a policy under which officers are subject

to dismissal if they engage in any action that constitutes a felony or misdemeanor that

carries a potential sentence of more than one year of incarceration. Neither a criminal

conviction nor a pending criminal proceeding is necessary to initiate disciplinary action.

In 2012, Hargrave was arrested and charged with offenses relating to an incident of

domestic violence involving his wife. The Department separately charged Hargrave with

conduct unbecoming of a police officer and dismissed him from the force. Two years

later, following a trial in the Philadelphia Court of Common Pleas, a jury found Hargrave

not guilty of all charges related to the incident. Hargrave sought reinstatement, but an

arbitrator rejected the request.

       On January 16, 2015, Hargrave filed a complaint in the District Court for the

Eastern District of Pennsylvania challenging the constitutionality of his dismissal. The

complaint named the City and Commissioner Ramsey as defendants. It alleged four

counts: (1) race discrimination in violation of the Equal Protection Clause of the

Fourteenth Amendment; (2) retaliation for speech protected by the First Amendment; (3)

municipal liability under Monell v. New York City Department of Social Services;1 and


       1
           436 U.S. 658 (1978).
                                             2
(4) race discrimination in violation of the Pennsylvania Constitution’s equal protection

guarantee. Defendants moved for dismissal under Federal Rule of Civil Procedure

12(b)(6) on all but Hargrave’s federal equal protection claim. On May 20, 2015, the

District Court dismissed the First Amendment retaliation count without prejudice,

declined to dismiss the Monell count, and dismissed the Pennsylvania equal protection

count with prejudice. Hargrave did not replead his First Amendment retaliation claim.

Defendants thereafter moved for summary judgment on Hargrave’s federal equal

protection and Monell claims. In opposing defendants’ motion, Hargrave filed a Rule

56(d) affidavit asserting the need for additional discovery. The District Court granted

defendants’ motion on June 8, 2016. This appeal followed.

                                            II

       The District Court had jurisdiction under 28 U.S.C. §§ 1331 and 1343. We have

jurisdiction under 28 U.S.C. § 1291. We exercise plenary review over both the District

Court’s grant of summary judgment and its dismissal under Rule 12(b)(6).2 We review

for abuse of discretion the District Court’s refusal to reopen discovery upon presentation

of a Rule 56(d) affidavit.3

                                            III



       2
        EEOC v. Allstate Ins. Co., 778 F.3d 444, 448 (3d Cir. 2015) (summary
judgment); Flora v. Cty. of Luzerne, 776 F.3d 169, 174 n.7 (3d Cir. 2015) (Rule 12(b)(6)
dismissal).
      3
        Murphy v. Millennium Radio Grp., LLC, 650 F.3d 295, 310 (3d Cir. 2011).
                                            3
       Hargrave raises three arguments on appeal. First, he contends that the District

Court erroneously granted defendants summary judgment on his federal equal protection

claim. Second, he says that the District Court abused its discretion by not granting him

more discovery to counter defendants’ summary judgment motion. And third, he submits

that the District Court should not have dismissed his First Amendment retaliation claim.

                                              A

       Hargrave, who is black, claims that the Department selectively enforced its

reinstatement policy against him because of his race. To establish a selective

enforcement claim, Hargrave must show “(1) that he was treated differently from other

similarly situated individuals, and (2) that this selective treatment was based on an

unjustifiable standard, such as race, or religion, or some other arbitrary factor, or to

prevent the exercise of a fundamental right.”4 “Persons are similarly situated under the

Equal Protection Clause when they are alike ‘in all relevant aspects.’”5 Hargrave also

bears the burden of proving “the existence of purposeful discrimination.”6

       We agree with the District Court that Hargrave failed make his case on both

elements. Hargrave produced no evidence of similarly situated white police officers who

committed domestic assault (or engaged in other conduct warranting termination) but

       4
         Dique v. N.J. State Police, 603 F.3d 181, 184 n.5 (3d Cir. 2010) (ellipsis omitted)
(quoting Hill v. City of Scranton, 411 F.3d 118, 125 (3d Cir. 2005)).
       5
         Startzell v. City of Philadelphia, 533 F.3d 183, 203 (3d Cir. 2008) (quoting
Nordlinger v. Hahn, 505 U.S. 1, 10 (1992)).
       6
         Blunt v. Lower Merion Sch. Dist., 767 F.3d 247, 273 (3d Cir. 2014) (quoting
Andrews v. City of Philadelphia, 895 F.3d 1469, 1478 (3d Cir. 1990)).
                                               4
were not dismissed from the police department and denied reinstatement. Absent such

comparator evidence, Hargrave’s claim fails at the starting gate. We likewise agree with

the District Court that Hargrave failed to prove intentional discrimination by the City and

Ramsey. The District Court saw no such evidence in the record, and neither do we.

Summary judgment on Hargrave’s equal protection claim was appropriate.

                                               B

       Hargrave next contends that the District Court abused its discretion by declining to

grant additional discovery after he filed a Rule 56(d) affidavit in opposition to

defendants’ motion for summary judgment. This Court has interpreted Rule 56(d) to

require “a party seeking further discovery in response to a summary judgment motion to

submit an affidavit specifying, for example, what particular information is sought; how, if

uncovered, it would preclude summary judgment; and why it has not previously been

obtained.”7 Altogether missing from Hargrave’s affidavit is any explanation about how

and why the information he sought could not have been obtained during discovery. The

District Court did not abuse its discretion.

                                               C

       Finally, Hargrave argues that the District Court should not have dismissed his First

Amendment retaliation claim. To establish such a claim, a public employee like

Hargrave “must show that his speech is protected by the First Amendment and that the

       7
        Pennsylvania, Dep’t of Pub. Welfare v. Sebelius, 674 F.3d 139, 157 (3d Cir.
2012) (brackets and internal quotation marks omitted).
                                           5
speech was a substantial or motivating factor in what is alleged to be the employer’s

retaliatory action.”8 A public employee’s statement is protected by the First Amendment

when, inter alia, “the employee spoke as a citizen when making the statement” and “the

statement involved a matter of public concern.”9 Hargrave’s complaint contains nothing

more than conclusory references to prior speech in “opposition to racial discrimination

and/or misuse of the criminal and disciplinary system.”10 Such threadbare statements are

insufficient to state a plausible claim. Especially after Hargrave declined the District

Court’s invitation to amend his complaint, we will not now permit him a third bite at the

apple.

                                              IV

         For the forgoing reasons, we will affirm the judgment of the District Court.




         8
           Flora, 776 F.3d at 174.
         9
           Id. at 175 (internal quotation marks omitted).
         10
            Compl. ¶ 51, J.A. 42.
                                                6
