                                                              NOT PRECEDENTIAL

                     UNITED STATES COURT OF APPEALS
                          FOR THE THIRD CIRCUIT
                               _____________

                                   No. 11-1328
                                  _____________

                                  BRIAN SKILES,
                                         Appellant

                                         v.

    CITY OF READING; THOMAS J. MCMAHON, Mayor City of Reading, In His
                            Individual and Official Capacity;
BRAD REINHART, Code Administrator, City of Reading, In His Individual and Official
                                        Capacity;
   WILLIAM FRYMORE, Code Enforcement Officer City of Reading, In His Official
                                        Capacity;
   MICHELLE MAYFIELD, Code Enforcement Department, City of Reading, In Her
                                    Official Capacity;
 JAMES V. SANOCKI, Health Inspector, City of Reading Codes Enforcement Division,
                               Property Maintenance Unit,
 In His Individual and Official Capacity; FRED YOURKAVITCH, Plumbing Inspector,
  City of Reading Codes Enforcement Division, Building/Trades Unit, In His Individual
                                  and Official Capacity;
  STEVE DUNKLE, Building Inspector, City of Reading Codes Enforcement Division,
Building/Trades Unit, In His Individual and Official Capacity; MICHELLE MAYFIELD,
                  Legal Specialist City of Reading Department of Law,
                         In Her Individual and Official Capacity
                                    ______________

 APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN
                     DISTRICT OF PENNSYLVANIA
                    (D.C. Civ. Action No. 10-cv-02270)
              District Judge: Honorable Lawrence F. Stengel
                             ______________

                     Submitted Under Third Circuit LAR 34.1(a)
                                September 22, 2011
                                 ______________
        Before: FISHER, HARDIMAN, and GREENAWAY, JR., Circuit Judges.

                            (Opinion Filed: October 27, 2011)
                                    _____________

                                        OPINION
                                     ______________

GREENAWAY, JR., Circuit Judge.

       Brian Skiles (“Skiles”) appeals the District Court‟s January 7, 2011 Order

dismissing, with prejudice, his Amended Complaint against the City of Reading (the

“City”) and certain of its governmental officials (collectively, the “City Defendants”),1

pursuant to Federal Rule of Civil Procedure 12(b)(6). The Amended Complaint alleged

that the City Defendants violated his constitutional rights through the improper

enforcement of the City‟s zoning, housing, and health regulations applicable to his

residential and commercial properties. Skiles contends that the District Court applied an

improper heightened standard to determine the merits of his substantive due process

claim and otherwise failed to consider his well-pled factual allegations. For the reasons

that follow, we will affirm the District Court‟s Order.

                                   I. BACKGROUND

       Because we write primarily for the benefit of the parties, we recount only the

essential facts.

1
  The City Defendants named in the Amended Complaint are: the City, City Mayor
Thomas McMahon, City Code Administrator Brad Reinhart, City Code Enforcement
Officer William Frymoyer, City Assistant Solicitor Michelle Mayfield, Esq., City Health
Inspector James Sanocki, City Building Inspector Steve Dunkle, and City Plumbing
Inspector Fred Yourkavitch. According to the City Defendants, although named in the
Amended Complaint, Mr. Yourkavitch died prior to the initiation of the lawsuit, and is no
longer a party to this action, as service was never perfected on his estate.
                                             2
         Skiles owns multiple residential rental properties throughout the City and one

commercial property—the “Scarab” bar and restaurant that is known as “Daddy‟s Night

Club”—located in the City at 724 Franklin Street. Beginning in 2006, Mayor McMahon

began implementation of a policy called “Downtown 20/20,” designed to “establish a

unified vision for improving the quality of life in Greater Reading.” (App. 11.) The

objective of the policy was to reduce the number of rental properties and boarding houses

and to revitalize the City‟s commercial center.

         Skiles alleged that the City Defendants sought to destroy the economic viability of

his residential and commercial properties through their enforcement of various zoning,

residential, and health regulations. Skiles alludes to two instances proving that the policy

was inimical to his interest. First, Skiles points to an exchange in May 2008 in which the

City Defendants “arbitrarily” changed the zoning approval for one of his residential

properties, reducing the number of permissible parking spaces from sixteen to eight.2

(App. 14.) The second instance occurred a month later, when the City Defendants

allegedly misrepresented to two potential buyers of Skiles‟s residential properties that the

properties were zoned for single families when, in fact, they were zoned as multi-family

dwellings.

         In February 2009, the City Defendants “arbitrarily and unilaterally” sought to

redesignate the zoning and housing classifications for several of Skiles‟s residential

properties. (App. 13.) Skiles claimed that despite Assistant Solicitor Mayfield‟s promise

in an April 2009 letter to correct the improper redesignations, the requisite corrections

2
    The zoning permit was eventually corrected to allow for sixteen parking spaces.
                                              3
were never made. Skiles does not allege, however, that he complied with the

prerequisites to the issuance of new permits that Assistant Solicitor Mayfield identified in

her letter.3 Moreover, Skiles acknowledged that he was not the sole target of the City

Defendants‟ efforts to redesignate the zoning and housing classifications for rental

properties, as other residential property owners were issued incorrect housing rental

permits.

       Skiles also alleged that the City Defendants sought to shut down his business,

Daddy‟s Night Club. He maintained that it was widely known that Daddy‟s Night Club

entertained a homosexual clientele. As such, the City Defendants sought to close

Daddy‟s Night Club under the guise of regulatory violations based on the City

Defendants‟ animus towards homosexuals. Since 1982, Skiles has held the title to the

property and has operated the business. From 2006-2008, Jose Perez (“Perez”), a

business associate of Skiles, was named on the commercial lease for Daddy‟s Night Club.

Both the 2006 and 2007 health permits for the business were held in Perez‟s name. In

March 2007, the zoning permit for Daddy‟s Night Club was transferred to Perez. Skiles

never received an application in 2008 to renew the annual health permit for Daddy‟s

Night Club, as he had in previous years. On May 14, 2008, Skiles attempted to pay for

and obtain the health permit at the City‟s Code Enforcement Office. The office refused

to issue the health permit and notified Skiles that Daddy‟s Night Club would be closed as

3
 Although Skiles did not attach the April 2009 letter as an exhibit to his Amended
Complaint, his reliance upon the letter allows us to consider it, as the City Defendants
attached the letter as an exhibit to their motion to dismiss. See Miller v. Clinton County,
544 F.3d 542, 550 (3d Cir. 2008).

                                             4
of that day. Skiles maintained that neither he nor Perez had any prior notice that Daddy‟s

Night Club was subject to closure due to violations of City regulations, though the 2007

health permit for Daddy‟s Night Club expired on December 31, 2007.

       Skiles alleged that the first notice he received came by letter two weeks after the

City closed Daddy‟s Night Club, informing him that the business was closed for failure to

obtain a health permit. Skiles also was notified that he had to obtain a valid zoning

permit for Daddy‟s Night Club. In July 2008, Skiles transferred the zoning permit for

Daddy‟s Night Club from Perez back to his name. A month later, Skiles received a

detailed letter outlining all of the regulatory violations identified at Daddy‟s Night Club

and an edict that the violations had to be corrected before a health permit could issue.

Skiles rectified the health violations and obtained a health permit for Daddy‟s Night

Club, allowing him to reopen the business, in December 2009.

       Skiles‟s federal lawsuit asserted three causes of action: (1) violation of his First

Amendment right to freedom of association, pursuant to 42 U.S.C. § 1983; (2) violation

of his Fourteenth Amendment due process rights, pursuant to 42 U.S.C. § 1983; and (3)

conspiracy to violate his First and Fourteenth Amendment rights, pursuant to 42 U.S.C.

§§ 1983 and 1985. The District Court granted the City Defendants‟ Motion to Dismiss

the Amended Complaint, holding that Skiles could not establish a constitutional

violation.4


4
 Skiles does not raise any arguments in his opening brief on appeal regarding the District
Court‟s dismissal of his First Amendment freedom of association claim. This claim is
waived. See Gonzalez v. AMR, 549 F.3d 219, 225 (3d Cir. 2008) (arguments not raised
on appeal are waived).
                                              5
                 II. JURISDICTION AND STANDARD OF REVIEW

       The District Court had jurisdiction over Skiles‟s claims, pursuant to 28 U.S.C. §§

1331 and 1343. We have jurisdiction, pursuant to 28 U.S.C. § 1291, to review the

District Court‟s final order.

       We review a district court‟s order granting a motion to dismiss de novo. Victaulic

Co. v. Tieman, 499 F.3d 227, 234 (3d Cir. 2007). A Rule 12(b)(6) motion to dismiss

should be granted only if the plaintiff is unable to articulate “enough facts to state a claim

to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570

(2007); see also Ashcroft v. Iqbal, 556 U.S. 662, ---, 129 S. Ct. 1937, 1949 (2009). A

plaintiff is required, by Federal Rule of Civil Procedure 8(a)(2), to provide the “grounds

of his entitle[ment] to relief [which] requires more than labels and conclusions, and a

formulaic recitation of the elements of a cause of action will not do.” Twombly, 550 U.S.

at 555 (citation and internal quotation marks omitted; second alteration added). Like the

district court, “[w]e accept all well-pleaded allegations in the complaint as true and draw

all reasonable inferences in [the plaintiff‟s] favor.” Capogrosso v. Supreme Court of

New Jersey, 588 F.3d 180, 184 (3d Cir. 2009) (quoting McGovern v. City of

Philadelphia, 554 F.3d 114, 115 (3d Cir. 2009)).

       We review a district court‟s order dismissing a complaint with prejudice for an

abuse of discretion. United States ex rel. Willis v. United Health Grp., Inc., --- F.3d ----,

2011 WL 2573380, at *4 (3d Cir. June 30, 2011).




                                              6
                                      III. ANALYSIS

       To state a Fourteenth Amendment substantive due process claim pursuant to 42

U.S.C. § 1983, a plaintiff must first establish that, as a threshold matter, he has a

protected constitutional interest at issue.5 See McCurdy v. Dodd, 352 F.3d 820, 825-26

(3d Cir. 2003) (recognizing that § 1983 protects only the deprivation of an individual‟s

constitutional rights). Assuming that this threshold is met, a plaintiff must prove that

government employees engaged in conduct that “shocks the conscience.” County of

Sacramento v. Lewis, 523 U.S. 833, 846-47 (1998); United Artists Theatre Circuit, Inc. v.

Twp. of Warrington, 316 F.3d 392, 399-400 (3d Cir. 2003). This standard reflects the

cornerstone of substantive due process that values “protection of the individual against

arbitrary action of government.” Lewis, 523 U.S. at 845 (quoting Wolff v. McDonnell,

418 U.S. 539, 558 (1974)). As a result, this conscience-shocking standard will be

satisfied for “only the most egregious official conduct.” Eichenlaub v. Twp. of Indiana,

385 F.3d 274, 285 (3d Cir. 2004) (citations and internal quotation marks omitted).

       Governmental conduct that is purposefully injurious is most likely to be indicative

of conduct that “shocks the conscience.” Evans v. Sec‟y Pa. Dep‟t of Corrs., 645 F.3d

650, 660 (3d Cir. 2011); see also Eichenlaub, 385 F.3d at 286 (recognizing that

allegations of corruption and self-dealing would “shock the conscience”). “The exact

degree of wrongfulness necessary to reach the „conscience-shocking‟ level depends upon

the circumstances of a particular case.” Miller v. City of Philadelphia, 174 F.3d 368, 375


5
  The parties do not dispute that Skiles has a constitutionally protected interest in his
residential and commercial land.
                                              7
(3d Cir. 1999). In the zoning and land use context, the “shocks-the-conscience” standard

is “designed to avoid converting federal courts into super zoning tribunals.” Eichenlaub,

385 F.3d at 285.

       Skiles argues that the District Court improperly categorized this action as a land-

use dispute and then applied a heightened land-use version of the conscience-shocking

standard. We disagree. The District Court correctly recognized that only governmental

conduct that “shocks the conscience” will rise to the level of a substantive due process

violation. We have never recognized a heightened standard applicable to those

substantive due process claims arising in the land-use context. See id. (“The District

Court properly held . . . that whether a zoning official‟s actions or inactions violate due

process is determined by utilizing a „shocks the conscience‟ test.”). Indeed, we have

merely recognized that 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, 316

F.3d at 402. That land-use decisions are not matters for federal courts to address, absent

conduct that “shocks the conscience,” in no way alters, and certainly does not heighten,

this substantive due process standard.

       But regardless of whether this lawsuit bears the hallmarks of a traditional land-use

dispute, taking into account all of Skiles‟s well-pled allegations, we agree with the

District Court that Skiles‟s substantive due process claim cannot survive a motion to

dismiss. Skiles alleged that the City Defendants improperly redesignated the zoning and

housing classifications for his residential property. As Skiles acknowledged, the City

                                              8
Defendants corrected certain erroneous designations and, in any event, other residential

property owners received similar treatment. These allegations simply do not rise to the

level of conduct that “shocks the conscience.” Moreover, Mayor McMahon instituted a

policy designed to revitalize the City‟s rental properties—a legitimate governmental

interest—that belies Skiles‟s claim of unfair treatment. See Nicholas v. Pa. State Univ.,

227 F.3d 133, 142 (3d Cir. 2000).

       Skiles‟s factual assertions are equally insufficient as a matter of law with respect

to Daddy‟s Night Club. Though Skiles claimed that the City Defendants targeted

Daddy‟s Night Club based on personal animus towards its homosexual patrons, Skiles‟s

only evidentiary support for this statement is that City Plumbing Inspector Yourkavitch

allegedly referred to Skiles as a “fagot” [sic] during a 2006 inspection of Daddy‟s Night

Club. (App. 19.) Even accepting the truth of this factual allegation, it falls woefully

short of demonstrating that the City Defendants‟ treatment of Daddy‟s Night Club

“shocks the conscience.” Although the City Defendants closed Daddy‟s Night Club due

to zoning and health code violations, Skiles was able to reopen his business once the

violations were rectified. If the City Defendants had been so intent on furthering their

discriminatory goal by eradicating Daddy‟s Night Club, they would not have allowed the

business to reopen once the regulatory violations were corrected.

       Assuming the truth of Skiles‟s factual averments, Skiles is, at best, an aggrieved

property owner, which is insufficient to sustain a substantive due process claim.6 As we


6
 Following the Supreme Court‟s decisions in Twombly and Iqbal, a plaintiff need only
demonstrate that the factual averments in the complaint state a plausible, rather than
                                              9
have acknowledged, it is not the role of federal courts to provide a remedy for merely

aggrieved land owners. See Eichenlaub, 385 F.3d at 285. The conscience-shocking

standard demands more.

         Because we will affirm the District Court‟s dismissal of Skiles‟s substantive due

process claim, it follows a fortiori that Skiles cannot succeed on his claim alleging that

the City Defendants conspired to violate his civil rights. Accordingly, the District Court

also did not err in dismissing the conspiracy count of Skiles‟s Amended Complaint.7

                                    IV. CONCLUSION

         For the foregoing reasons, we will affirm the District Court‟s January 7, 2011

Order.




probable, claim for relief. Skiles‟s contention that the District Court failed to accept his
well-pled factual allegations and instead applied an improper probability standard is not
correct. The District Court made clear that Skiles could not survive a motion to dismiss,
even assuming the truth of his factual allegations. Further, Skiles acknowledges that the
District Court recognized that it must apply the plausibility standard. (Appellant‟s Br. at
24.)
7
  Skiles argues that, at a minimum, the District Court erred in dismissing his suit without
offering him an opportunity to further amend his Amended Complaint. While it is true
that a district court ordinarily should not dismiss a civil rights suit for failure to state a
claim before affording the plaintiff an opportunity to amend the complaint, such
opportunity is not required where amendment would be futile. Fletcher-Harlee Corp. v.
Pote Concrete Contractors, Inc., 482 F.3d 247, 251 (3d Cir. 2007). Skiles already has
amended the Complaint once, and there is nothing in the record to suggest that allowing
him to further amend would be anything but futile.
                                              10
