                                                                NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                       No. 13-3540
                                       ___________

                                GERHARD SWEETMAN,
                                            Appellant

                                             v.

      BOROUGH OF NORRISTOWN, PA; COUNTY OF MONTGOMERY, PA;
         STATE OF PENNSYLVANIA; LANDLORD MICHAEL SIMON
                 ____________________________________

                     On Appeal from the United States District Court
                         for the Eastern District of Pennsylvania
                         (D.C. Civil Action No. 2:11-cv-07404 )
                     District Judge: Honorable Mitchell S. Goldberg
                      ____________________________________

                   Submitted Pursuant to Third Circuit LAR 34.1(a)
                                  January 28, 2014
              Before: AMBRO, SHWARTZ and SCIRICA, Circuit Judges

                            (Opinion filed: January 28, 2014)
                                     ___________

                                        OPINION
                                       ___________

PER CURIAM

       Gerhard Sweetman appeals pro se from the District Court’s order granting motions

to dismiss filed in his civil rights case. Sweetman also challenges the District Court’s

order denying his motion for reconsideration. We will affirm.
I.

       In December 2011, Sweetman filed a pro se civil rights complaint in the District

Court against Pennsylvania (the “Commonwealth”), Montgomery County, the Borough

of Norristown, and Michael Shimon (Sweetman’s landlord). Sweetman appeared to

assert that in December 2009, Norristown “code enforcement” officers attempted to gain

entry to his apartment for an inspection.1 Sweetman asserted that this attempted entry

violated his Fourth Amendment rights. He also asserted that the officers made terroristic

threats which later caused him to have a heart attack, resulting in his hospitalization.

       Montgomery County, Norristown, and the Commonwealth each filed motions to

dismiss. The District Court liberally construed the complaint to assert claims pursuant to

42 U.S.C. § 1983 and Monell v. Dep't of Social Servs., 436 U.S. 658, 694 (1978), but it

concluded that Sweetman’s complaint contained no viable claim. It concluded that the

complaint failed to identify any Commonwealth or Montgomery County officials who

were involved in the alleged constitutional violation. As to Norristown, the District

Court concluded that Sweetman failed to allege facts that, if true, would establish a

constitutional violation. The District Court also concluded that § 1983 would not permit

recovery for an attempted warrantless search.



1
  Sweetman asserts for the first time on appeal that his door was opened during the
attempted entry and that he had to forcibly shut it to prevent the entry of the code
enforcement officers. We do not ordinarily consider allegations raised for the first time
on appeal, and we will not do so here. See Fassett v. Delta Kappa Epsilon, 807 F.2d
1150, 1165 (3d Cir. 1986).
                                             2
       With the leave of the District Court, Sweetman filed an amended complaint.

While more detailed, the amended complaint again asserted that the code enforcement

officers violated his Fourth Amendment rights by “an attempted apartment invasion and

attempted entry.” Sweetman provided few details of the alleged incident, noting only

that it came “to the point of almost kicking the door in by Code Enforcement Officers . . .

.”2 Sweetman alleged that the attempted entry occurred without his consent and without

a valid search warrant. The Commonwealth, Montgomery County, and Norristown each

filed new motions to dismiss, and the District Court, referencing the reasoning in its prior

order, granted the motions and dismissed the amended complaint.3

       Sweetman filed a timely motion for reconsideration which did not address the

District Court’s underlying reasoning. Rather, it requested that the District Court

reconsider its ruling due to Sweetman’s expectation that pending responses to his

interrogatories would provide “iron clad evidence of damages done from the incidents.”

After the District Court entered an order denying the motion for reconsideration,

Sweetman timely appealed. In January 2014, Sweetman filed a motion to enjoin the

Federal Housing Authority from discontinuing his public housing voucher.




2
  Sweetman did not provide any other details concerning the attempted entry in his
amended complaint.
3
  The District Court also dismissed the claims asserted against Michael Shimon pursuant
to 28 U.S.C. § 1915(e)(2)(B)(ii), on the grounds that Sweetman failed to establish a
constitution violation or that Shimon was acting under color of state law. It appears that
Shimon was never served with a copy of the complaint.
                                             3
                                               II.

       We first address the scope of our jurisdiction. Sweetman’s notice of appeal

referenced only the District Court’s denial of reconsideration. However, the order

dismissing Sweetman’s motion is clearly connected to the prior order dismissing his

amended complaint, and Sweetman’s briefs in support of his appeal, liberally construed,

make clear his intention to appeal the District Court’s prior order. Accordingly, we will

construe Sweetman’s appeal as an appeal of both orders. See Wiest v. Lynch, 710 F.3d

121, 127 (3d Cir. 2013).

       We exercise appellate jurisdiction pursuant to 28 U.S.C. § 1291. Our review of a

District Court’s order granting a motion to dismiss is plenary. Fowler v. UPMC

Shadyside, 578 F.3d 203, 206 (3d Cir. 2009). In conducting this review, we accept the

truth of Sweetman’s factual allegations and draw reasonable inferences in his favor. See

Capogrosso v. Sup. Ct. of N.J., 588 F.3d 180, 184 (3d Cir. 2009) (per curiam). To

survive a motion to dismiss, a complaint must “contain sufficient factual matter, accepted

as true, to ‘state a claim to relief that is plausible on its face.”’ Ashcroft v. Iqbal, 556 U.S.

662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). We

review the denial of Sweetman’s motion for reconsideration for abuse of discretion. See

Lazaridis v. Wehmer, 591 F.3d 666, 669 (3d Cir. 2010) (per curiam).




                                               4
                                            III.

       The District Court correctly granted the motions to dismiss. As the District Court

concluded, Sweetman failed to allege that any officials from either the Commonwealth or

Montgomery County were involved in any attempted entry of his apartment. See Rode v.

Dellarciprete, 845 F.2d 1195, 1207-08 (3d Cir. 1988). Thus, they were not viable

defendants.4

       As to Norristown, the District Court properly concluded that an attempted

violation of Sweetman’s Fourth Amendment rights is not remediable under § 1983, as no

actual deprivation of his federally protected rights occurred.5 See Collins v. City of

Harker Heights, Tex., 503 U.S. 115, 120 (1992) (“Section 1983 provides a remedy

against ‘any person’ who, under color of state law, deprives another of rights protected by

the Constitution”) (citing 42 U.S.C. § 1983); cf. Cnty. of Sacramento v. Lewis, 523 U.S.

833, 845 n.7 (1998) (attempted seizures of person are beyond the scope of the Fourth

Amendment); United States v. Valentine, 232 F.3d 350, 358 (3d Cir. 2000) (“[I]f the

police make a show of authority and the suspect does not submit, there is no seizure.); see

also, e.g., Andree v. Ashland Cnty., 818 F.2d 1306, 1311 (7th Cir. 1987) (“[T]he mere


4
  We note that municipal code enforcement is administered by each municipality and not
by the Commonwealth or county officials. See 35 Pa. Stat. Ann. § 7210.501; Com. v.
Daugherty, 829 A.2d 1273, 1277 (Pa. Commw. Ct. 2003).
5
  Sweetman asserted that the attempted entry into his apartment caused him to suffer a
heart attack several weeks after the incident. Setting aside the question of whether an
attempted entry is cognizable under § 1983, Sweetman has not plausibly alleged that the
heart attack was a result of the interaction. See Iqbal, 556 U.S. at 678; Twombly, 550
U.S. at 570.
                                               5
attempt to deprive a person of his [constitutional] rights is not, under usual

circumstances, actionable under section 1983) (emphasis in the original). It may be that

Sweetman thinks that the Norristown officials should be liable because they planned,

wanted, or conspired to deprive him of his Fourth Amendment rights. If so, § 1983 does

not provide a remedy. A § 1983 conspiracy claim is viable only if there has been an

actual deprivation of a constitutional right. Andree v. Ashland Cnty., 818 F.2d 1306,

1311 (7th Cir. 1987); see also Dixon v. City of Lawton, 898 F.2d 1443, 1449 (10th Cir.

1990). Accordingly, as Sweetman did not submit to the inspection of his home and thus

was not deprived of his Fourth Amendment right to be free of unreasonable searches, cf.

Lewis, 523 U.S. at 845 n.7(1998); Valentine, 232 F.3d at 358, he did not assert a

remediable § 1983 conspiracy claim. See Andree, 818 F.2d at 1311.

       Sweetman also asserted that he was threatened during the attempted entry. While

he does not specify the exact nature of the threats, mere verbal threats do not provide the

basis for a viable § 1983 claim. See Hopson v. Fredericksen, 961 F.2d 1374, 1378 (8th

Cir. 1992). Sweetman also asserted the existence of a municipal policy that authorized

code enforcement agents to attempt to enter his premises. However, as Sweetman has

failed to state a claim pursuant to § 1983, he also failed to state a Monell claim. See

Monell, 436 U.S. at 694 (1978).

       Finally, in seeking reconsideration, Sweetman implied that the District Court

should have waited to dismiss his complaint until he had received responses to his

interrogatories. However, it was not error for the District Court to dismiss Sweetman’s
                                              6
complaint under Rule 12(b)(6) when it did. See, e.g., McLean v. United States, 566 F.3d

391, 399 (4th Cir. 2009) (noting that a purpose of Rule 12(b)(6) is dispensing with

needless discovery).

      For these reasons, and in light of our overall examination of the record, we will

affirm the judgment of the District Court. Sweetman’s motion for an injunction is

denied.6




6
 Sweetman seeks an injunction against the Federal Housing Authority to prevent the loss
of his housing voucher. However, any claims Sweetman seeks to raise against non-
parties to the instant action must be first raised in the District Court.
                                                7
