                                                                                                                           Opinions of the United
2003 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


10-17-2003

Koorn v. Lacey
Precedential or Non-Precedential: Non-Precedential

Docket No. 03-1231




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                                                     NOT PRECEDENTIAL

             UNITED STATES COURT OF APPEALS
                  FOR THE THIRD CIRCUIT


                           No. 03-1231


                         SHAIN KOORN;
                       RAFAELA KOORN
                     aka RACHAEL KOORN,

                                              Appellants

                                  v.

         LACEY TOWNSHIP; RONALD STERLING, MAYOR;
         JOHN PARKER; LOUIS AMATO; WILLIAM BOEHM;
JAMES KNOLLER, COMMITTEEMEN; LACEY TOWNSHIP DEPARTMENT
 OF COMMUNITY DEVELOPMENT; LOUIS A. D'ARIENZO, DIRECTOR;
       KENNETH THOMAS, CODE ENFORCEMENT OFFICER;
     LACEY TOWNSHIP BOARD OF HEALTH; LACEY TOWNSHIP
  POLICE DEPARTMENT; THOMAS R. DARMODY, CHIEF OF POLICE;
                   STATE OF NEW JERSEY




            Appeal from the United States District Court
                     for the District of New Jersey
                (D.C. Civil Action No. 01-cv-00079)
            District Judge: Honorable Anne E. Thompson


             Submitted Under Third Circuit LAR 34.1(a)
                        September 16, 2003

       Before: ALITO, AM BRO and CHERTOFF, Circuit Judges

                  (Opinion filed October 17, 2003)
                                           OPINION


AM BRO, Circuit Judge:

          Plaintiffs Shain and Rafaela Koorn brought a seventeen-count complaint against

Lacey Township and various Township officials and departments,1 alleging the

Township’s enactment of an animal control ordinance violates their constitutional and

statutory civil rights because it was motivated by racial animus. The United States

District Court for the District of New Jersey granted the Township’s motion for summary

judgment on all claims, though its written decision focused primarily on the Koorns’

substantive due process claim. Finding no error, we affirm.

                                              I.
                                             Facts

          Shain Koorn (who is African-American) and Rafaela Koorn (who is Hispanic)

purchased a home and property in the Township of Lacey, New Jersey, in 1998. After

moving in with many dogs (according to the Koorns, “less than 20”), they were soon

informed by the local code enforcement officer of a Township ordinance limiting

property owners to six dogs. Later, both the Koorns and the Township discovered that

what the code enforcement officer had believed was an official ordinance was in fact an

informal policy. In response to complaints from the Koorns’ neighbors, in November



   1
       For convenience, the defendants will be collectively referred to as “the Township.”

                                               2
2000 the Lacey Township Board of Health formally enacted an Animal Control

Ordinance (“Ordinance”) limiting the number of dogs that may be kept “in or about a

dwelling” to six.2

       It is not necessary to describe in detail the ongoing dispute between the Koorns,

their neighbors, and Township officials. It suffices that some of the Koorns’ neighbors

began complaining to Township officials about the Koorns’ dogs and about certain lights

installed by the Koorns as a security measure. The Koorns allege that the enforcement

actions brought under local dog-barking and lighting ordinances were harassing to them.

As for the enactment of the Ordinance, the relevant additional facts are the alleged racist

statements the Koorns attribute to certain Township officials who were instrumental in

the Ordinance’s enactment. One member of the Township Committee—indeed its liaison

to the Board of Health, Ronald Sterling—was an admitted “motivating factor” in the

enactment of the Ordinance. The Koorns allege that Sterling made a racist

remark—consisting of a lynching reference—at a televised Township Committee

meeting. The Koorns also allege that then-Mayor Parker, in conversation with the code




   2
    The Ordinance states in relevant part: “No person shall maintain, keep, or harbor ... or
permit to be maintained, kept or harbored in or about any dwelling or dwelling unit under
his control a total of more than six (6) dogs over seven (7) months of age or which
possess a set of permanent teeth.” The Ordinance was passed pursuant to the Board of
Health’s authority under N.J.S.A. 26:3-31 to “pass, alter, or amend ordinances and make
rules and regulations in regard to the public health within its jurisdiction, for the
following purposes...K. to regulate, control or prohibit the keeping and slaughtering of
animals.”

                                             3
enforcement officer, made a racist reference to the Koorns.

         In January 2001, the Koorns filed a complaint in the District Court alleging that the

enactment of the Ordinance violated the Constitution’s Fourteenth Amendment

(substantive and procedural due process), the Ex Post Facto Clause of Article I, Section

of the Constitution, the Fair Housing Act and other civil rights statutes, and various state

laws. They simultaneously sought to enjoin the Township from enforcing the Ordinance

against them. After the District Court denied their motion for injunction, the Koorns

negotiated with the Township for a stay of enforcement. They then amended their

District Court complaint to replace the request for injunctive relief with a request for

damages. In August 2002, the Township moved for summary judgment, which the

District Court granted. Koorn v. Lacey Township, No. 01-79 (D.N.J. Dec. 23, 2002).

The Koorns appeal.3

                                              II.
                                          Discussion

A.       Substantive Due Process Claims

         The Koorns argue that the adoption and enforcement of the Ordinance violates

their Fourteenth Amendment substantive due process rights. The Fourteenth Amendment

provides that no State shall “deprive any person of life, liberty, or property, without due




     3
    We have jurisdiction pursuant to 29 U.S.C. § 1291. Our review of a summary
judgment order is de novo, applying the same standard as the District Court. Ideal Dairy
Farms, Inc. v. John Labatt, Ltd., 90 F.3d 737, 743 (3d Cir. 1996).

                                               4
process of law.” It is well known that while, “on its face, this constitutional provision

speaks to the adequacy of state procedures, . . . the clause also has a substantive

component.” Nicholas v. Pa. State Univ., 227 F.3d 133, 139 (3d Cir. 2000) (citing

Planned Parenthood of S.E. Pa. v. Casey, 505 U.S. 833, 846-47 (1992)). This substantive

component protects citizens from arbitrary and improperly-motivated government action.

       We have previously acknowledged that the “fabric of substantive due process, as

woven by our courts, encompasses at least two very different threads.” Id. The first

“thread” of substantive due process applies to legislative acts. A legislative act is,

“generally[,] laws and broad executive regulations” which “apply to large segments of

society”— as distinguished from a non-legislative, or executive act, which “typically

appl[ies] to one person or to a limited number of persons.” Id. at 139 n.1. A legislative

act that limits a fundamental right will survive a substantive due process challenge only if

it is necessary to promote a compelling governmental interest. Id. at 139. When a

fundamental right is not at stake, a law must be rationally related to a legitimate

government interest in order to survive a substantive due process challenge. Id.

       The second “thread” of substantive due process jurisprudence analyzes “non-

legislative,” or executive, government actions. Non-legislative government acts may not

arbitrarily infringe on fundamental rights protected by the Constitution. Id. at 139. And

even where non-legislative action infringes on a fundamental right, only the “most

egregious official conduct can be said to be ‘arbitrary in the constitutional sense.’”



                                              5
Boyanowski v. Capital Area Intermediate Unit, 215 F.3d 396, 400 (3d Cir. 2000) (citing

County of Sacramento v. Lewis, 523 U.S. 833, 846 (1998) (emphasis in orginal)). Such

abuse of power must “shock[] the conscience.” Id. at 401 (citing Lewis, 523 U.S. at 846).

       1.     Adoption of the Ordinance does not violate the Koorns’ substantive due
              process rights.

       The Koorns argue that the District Court erred in granting summary judgment in

light of evidence that the Ordinance was instigated by and adopted with the improper

motive of racial animus. They apply erroneously the second-thread analysis, reserved to

executive action, to a legislative act. Rather, the Ordinance’s adoption is properly

analyzed under the first thread of substantive due process—whether it is rationally related

to a legitimate government interest, or, if fundamental rights are implicated, necessary to

promote a compelling governmental interest. Nicholas, 227 F.3d at 139.

       There is no fundamental right to keep more than a certain number of dogs in a

dwelling unit, so the District Court properly applied rational-basis scrutiny to evaluate the

Ordinance’s constitutionality. See Stern v. Halligan, 158 F.3d 729, 731 (3d Cir. 1998)

(“[W]hen ‘general economic and social welfare legislation’ is alleged to violate

substantive due process, it should be struck down only when if fails to meet a minimum

rationality standard, an ‘extremely difficult’ standard for plaintiff to meet.” (quoting

Knight v. Tape, Inc., 935 F. 2d 617, 627 (3d Cir. 1991))). Thus, to satisfy the rational-

basis test, the Ordinance need only be rationally related to any legitimate government

purpose. See id. The Ordinance need not be narrowly tailored to achieving that

                                              6
legitimate end. Id. at 734 (“Mere over- or underinclusiveness will not invalidate social

welfare regulation so long as the state action represents a rational response to a legitimate

problem.”); Rogin v. Bensalem Township, 616 F.2d 680, 689 (3d Cir. 1980) (“The law

need not be in every respect logically consistent with its aims to be constitutional. It is

enough that there is an evil at hand for correction, and that it might be thought that the

particular legislative measure was a rational way to correct it.” (quoting Williamson v.

Lee Optical Co., 348 U.S. 483 (1955))).

       Protecting residents’ health and safety is a legitimate interest of municipal

government. 4 Stern, 158 F.3d at 732 (“Protecting the health, safety, and general welfare

of township inhabitants . . . is plainly in the public interest.”). Large concentrations of

dogs can be dangerous and unsanitary. As a result, a municipality may rationally

conclude that limiting the number of dogs in any given dwelling will protect the health

and safety of its residents. The Township does not need to prove that the number of dogs



   4
    The Koorns argue that the Ordinance’s improper purpose is evidenced in part by its
“preemption” by the New Jersey dangerous dog statute, N.J.S.A. § 4:19-17–34. The
statute imposes notice and licensing requirements on owners of dogs found to be
“potentially dangerous” or “vicious” by a municipal court. The statute provides:
        The provisions of this act shall supersede any law, ordinance, or regulation
        concerning vicious or potentially dangerous dogs, any specific breed of dog,
        or any other type of dog inconsistent with this act enacted by any
        municipality, county, or county or local board of health.
Id. § 4:19-36 (emphasis added). A board of health ordinance limiting the number
of dogs a person may keep at a dwelling is not inconsistent with a statute imposing
requirements on owners of certain dangerous dogs. Hence the Koorns are wrong
to argue that the Ordinance is preempted.


                                               7
they chose to allow was any more or less rational than any other number, distinguish

between large and small dogs, address other pets such as cats, or impose sanitation

standards, as the Koorns allege. See Stern, 158 F.3d at 734; Rogin, 616 F.2d at 689.

Thus, as properly analyzed under the first thread of substantive due process, the

Ordinance does not impermissibly limit the Koorns’ substantive due process rights.

       2.     The Koorns do not allege that any specific non-legislative acts were
              improperly motivated by racial animus.

       Under the second thread of substantive due process, arbitrary and improperly

motivated non-legislative acts that directly infringe on a person’s fundamental rights are

unconstitutional. Nicholas, 227 F.3d at 139. As explained above, this analysis does not

apply to the legislative act of the Ordinance’s enactment. Other than that, the only non-

legislative acts that the Koorns allege were improperly motivated by racial animus are the

Mayor’s and Committeeman’s alleged racist remarks.5 However, even if proven, these

acts had no direct, legal effect on the Koorns’ property rights. See Boyanowski, 215 F. 3d

at 401 (slurs and innuendos made by government official did not directly infringe on

plaintiff’s property right). Certainly they had no legal effect on a requisite fundamental

right. 6 Nicholas, 227 F.3d at 140.


   5
    The Koorns appear to argue that enforcement actions under the Ordinance (which
would qualify as non-legislative acts) were improperly motivated as well, but there is no
evidence that any such enforcement occurred—especially in light of the negotiated stay of
enforcement between the parties.
   6
   While they correctly point out that ownership is a substantive property interest,
DeBlasio v. Zoning Bd. of Adjustment, 53 F.3d 592, 600 (3d Cir. 1995), the Koorns make

                                             8
       Furthermore, the Koorns do not allege any conduct so egregious that it “shocks the

conscience.” 7 Boyanowski, 215 F.3d at 401; see also Cruz-Erazo v. Rivera-Montañez,

212 F.3d 617, 622–24 (1st Cir. 2000) (police officers’ oral threats and repeated

harassment (but not physically intrusive or violent conduct) that did not “strike at the

basic fabric” of a protected relationship, such as the parent-child relationship, was not

sufficiently egregious as to “shock the conscience”); Collins v. Cundy, 603 F.2d 825, 827

(10th Cir. 1979) (allegation that sheriff laughed at and threatened to hang a prisoner did


no case that there is a fundamental property right to keep more than a certain number of
dogs in or near a dwelling unit. Nor could they have, as we have previously noted: “[W]e
have so far limited non-legislative substantive due process review to cases involving real
property ownership.” Nicholas, 227 F.3d at 141 (emphasis added). But regardless, the
Ordinance forecloses neither the Koorns’ real property ownership nor their ownership of
dogs; it simply restricts them from keeping more than six in or near their dwelling.
   7
    The Koorns cite Bello v. Walker, 840 F.2d 1124, 1129 (3d Cir. 1988), in support of
their argument that “improper motive” such as “personal interest or political partisanship”
is sufficient to establish a substantive due process violation. Their reliance on Bello is
misplaced for two reasons. First, as the Koorns would have discovered upon the most
cursory of citation-checks, Bello has been effectively overruled:
        We hold that [County of Sacramento v.] Lewis [,523 U.S. 833 (1998)
        (requiring evidence of conduct “shocking to the conscience” in order to find
        violation of substantive due process)] has superceded [sic] prior decisions
        of our Court holding that a plaintiff asserting a municipal land-use decision
        violated substantive due process need only show that the municipal officers
        acted with an “improper motive.” Thus, Bello v. Walker, 840 F.2d 1124
        (3d Cir. 1988), and its progeny are no longer good law.
United Artists Theater Circuit, Inc. v. Township of Warrington, 316 F.3d 392, 394 (3d
Cir. 2003).
        Second, as evident from the very language the Koorns chose to excerpt in their
brief, Bello involved an improperly-motivated non-legislative act, the issuance of
building permits, which is analyzed under a separate thread of substantive due process
from the legislative act at issue here.


                                              9
not state a constitutional claim under § 1983); Shabazz v. Cole, 69 F. Supp. 2d 177, 200

(D. Mass. 1999) (“Without even a suggestion of physical injury, [state prison librarian’s]

verbal abuse and racial epithets, although continuing for a long period of time, fall short

of conscience shocking conduct.”).

       For these reasons, the District Court correctly granted summary judgment to the

Township dismissing the Koorns’ substantive due process claims.

B.     Procedural Due Process Claims

       The Koorns assert that the Ordinance creates an “irrebutable presumption . . . that

more than six dogs, kept ‘in or about’ a dwelling, creates a health hazard . . . irrespective

of any other factors, without any procedure for the homeowner to prove otherwise. . . .”

But their argument that the District Court should have recognized this as a valid

procedural due process claim is unpersuasive.

       The Fourteenth Amendment requires that the government employ appropriate

procedural safeguards when depriving citizens of liberty or property interests recognized

under the Constitution. See, e.g., Mathews v. Eldridge, 424 U.S. 319, 332-333 (1976).

The Koorns are correct that the statutes creating permanent irrebutable presumptions

sometimes violate procedural due process. E.g., Vlandis v. Kline, 412 U.S. 441 (1973)

(state law providing that married students living in Connecticut who applied to the state

university from outside Connecticut were irrebutably presumed to be out-of-state students

violated procedural due process). But the Koorns are wrong to suggest that the Ordinance



                                              10
creates a presumption that more than six dogs creates a health hazard. Even though the

Ordinance is justified by a health and safety rationale, it applies to all dwellings at which

more than six dogs are kept—not just those at which more than six dogs constitute a

health hazard.8 And, as discussed above, such narrow tailoring is not required. Stern v.

Halligan, 158 F.3d 729, 734 (3d Cir. 1998) (“Mere over- or underinclusiveness will not

invalidate social welfare regulation so long as the state action represents a rational

response to a legitimate problem.”). The Ordinance does not create an irrebutable

presumption and it does not violate the Koorns’ procedural due process rights.

C.       Ex Post Facto Claim

         The Koorns argue that the Ordinance violates the Constitution’s Ex Post Facto

Clause, Art. I, § 9 cl. 3, because it imposes restrictions on activity—the raising of dogs at

their home—that was legal at the time they began it. “The ex post facto prohibition

forbids Congress and the states to enact any law which imposes a punishment for an act

which was not punishable at the time it was committed; or imposes additional punishment

to that then prescribed.” Weaver v. Graham, 450 U.S. 24, 28 (1981) (internal quotations

omitted). Two critical elements exist for a criminal law to be ex post facto: “it must be



     8
    Under the Koorns’ rationale, any health- or safety-related regulation that imposed
some restriction would create an irrebutable presumption that the restricted conduct is
dangerous or unhealthy. Under this premise, the Koorns would, one conjectures, argue
that the law requiring drivers to stop at stop signs violates their procedural due process
rights by creating an “irrebutable presumption” that not stopping is hazardous, without
giving the Koorns an opportunity to demonstrate, in a particular circumstance, that not
stopping is safe.

                                              11
retrospective, that is, it must apply to events occurring before its enactment, and it must

disadvantage the offender affected by it.” Id. at 29. The Ordinance is not retrospective.

It does not impose any punishment for any conduct occurring before its enactment.

Therefore, the District Court correctly denied the Koorns’ Ex Post Facto Clause claim.

D.          Fair Housing Act and Other Civil Rights Claims

            The Koorns argue that the District Court erred in not recognizing their claims

under any of the Fair Housing Act (“FHA”), 42 U.S.C. § 1981, and 42 U.S.C. § 1982.

They “rely substantially upon the McDonnell Douglas presumption” 9 with respect to

those claims. Because the Koorns do not make out cognizable claims under these

statutory provisions and do not qualify for the McDonnell Douglas presumption, the

District Court correctly granted the Township’s summary judgment motion on those

claims.

            1.     Fair Housing Act, 42 U.S.C. §§ 3604(a), 3617

            Under the Fair Housing Act, Title VIII of the Civil Rights Act of 1968, 42 U.S.C.

§§ 3604–31, it is unlawful for any person to refuse to sell or otherwise make unavailable

a dwelling to any person on the basis of race. 42 U.S.C. § 3604(a). It is also unlawful to

“coerce, intimidate, threaten, or interfere with any person in the exercise or enjoyment of”

that person’s right to have a dwelling. Id. §§ 3617, 3604. “Dwelling” means a “building

. . . designed for occupancy as a residence by one or more families.” Id. § 3602(b).



     9
         See discussion at subsection D.3 infra.

                                                   12
              a.     Section 3604(a)

       To make out a claim under § 3604(a), the Koorns must assert, first, that the

Township denied or made housing unavailable to them and, second, that the Township’s

actions were based on the Koorns’ race. Edwards v. Johnston County Health Dep’t, 885

F.2d 1215, 1221 (4th Cir. 1989). The Koorns’ FHA claim is deficient in that (1)

Township did not “otherwise make unavailable” the Koorns’ dwelling, and (2) the

Township’s actions were not made “on the basis of race.”

                     (i)    “Otherwise make unavailable”

       The Koorns claim that the actions of Township officials, “including without

limitation the enactment of the Ordinance, were committed with the deliberate intent of

harassing, intimidating, and coercing plaintiffs, and to deprive them of the use and

enjoyment of their home, and for the purpose of creating such a hostile living

environment that plaintiffs would decide to leave their home, and perhaps the Town.”

However, in limiting the number of dogs a person may keep at a dwelling, the Ordinance

does not “make unavailable” the Koorns’ right to have a dwelling in which to reside. As

such, the enactment and enforcement of the Ordinance does not violate the FHA.

                     (ii)   “On the Basis of Race”

       “A Title VIII claim must rest, in the first instance, upon a showing that the

challenged action by a defendant had a racially discriminatory effect.” Resident Advisory

Bd. v. Rizzo, 564 F.2d 126, 148 (3d Cir. 1977). Discriminatory effect may be proved by

                                             13
showing either “adverse impact to a particular minority group” or “harm to the

community generally by the perpetuation of segregation.” Huntington Branch, NAACP v.

Town of Huntington, 844 F.2d 926, 937 (2d Cir.), aff’d in part, 488 U.S. 15 (1988). The

Koorns make no showing that the Ordinance affects “a particular minority group.” The

Ordinance affects all Township citizens, white and minority alike. Nor is there any

evidence that the Ordinance is likely to affect the Township’s citizens along racial lines.

As the District Court stated, “the fact that the first person an Ordinance affects is a person

of color does not negate the fact that such Ordinance is a legitimate governmental

exercise.” Koorn v. Lacey Township, No. 01-79, at 4 (D.N.J. Dec. 23, 2002). As a result,

the Koorns cannot sustain a claim under § 3604(a) of the Fair Housing Act.

              b.     Section 3617

       The Fair Housing Act also makes it unlawful to “coerce, intimidate, threaten, or

interfere with any person in the exercise or enjoyment of . . . any right granted or

protected by” various sections of Title VIII, including Section 3604, which secures a

person’s right not to be denied a dwelling on the basis of race. 42 U.S.C. § 3617. As

discussed above, the Township’s enactment of the Ordinance limiting the number of dogs

that a person may keep at a dwelling does not interfere with the Koorns’ right to have a

dwelling nor does it discriminate on the basis of race. For these same reasons, the Koorns

do not successfully make out a claim under § 3617.




                                             14
       2.     42 U.S.C. §§ 1981 and 1982

       The Koorns claim that the actions of the Township officials “denied them equal

benefits of the law in the security of their persons and property, and to make and enforce

contracts, under 42 U.S.C. 1981” and “their equal rights to own real property under 42

U.S.C. § 1982.” They do not identify a distinct claim under either statute.

       42 U.S.C. § 1981 provides: “All persons . . . shall have the same right in every

State and Territory to make and enforce contracts, to sue, be parties, give evidence, and to

the full and equal benefit of all laws and proceedings for the security of persons and

property as is enjoyed by white citizens. . . .” 42 U.S.C. § 1982 mandates that “[a]ll

citizens shall have the same right, in every State and Territory, as in enjoyed by white

citizens thereof, to inherit, purchase, lease, sell, hold, and convey real and personal

property.”

       The Ordinance limits the number of dogs that the Koorns can keep at any one

dwelling. It does not foreclose them from owning any number of dogs or from owning

any particular dwellings. For sure the Ordinance does not affect their right to “inherit,

purchase, lease, sell, hold, or convey real or personal property.” Nor does it infringe on

the Koorns’ right to make and enforce contracts. Furthermore, the Ordinance does not

deny the Koorns any right that is “enjoyed by white citizens thereof.” The Ordinance

forecloses white citizens from keeping more than six dogs at a dwelling, just as it

forecloses the Koorns. Thus the enactment of the Ordinance does not violate §§ 1981 or

                                              15
1982. Nor do the Koorns demonstrate how any other acts of the Township officials

infringe on their §§ 1981 and 1982 rights.

       3.     The McDonnell Douglas Presumption

       The Koorns allege, with respect to their FHA, §§ 1981, 1982 claims, that they are

entitled to the burden-shifting presumption of McDonnell Douglas Corp. v. Green, 411

U.S. 792 (1973). A plaintiff who establishes a prima facie case for discriminatory effect

can shift the burden to defendants for justification of acts with discriminatory effects.

Resident Advisory Board, 564 F.2d at 149. A prima facie case consists of proof that (1)

plaintiffs are in a protected class, (2) they applied for and were qualified to rent or

purchase housing, (3) they were rejected, and (4) the housing opportunity remained

available. Robinson v. 12 Lofts Realty, Inc., 610 F.2d 1032 (2d Cir. 1979). While the

Koorns establish that they are racial minorities and that they are qualified for the

ownership of their home, they admit that the third and fourth elements have not been

satisfied. (J.A. at 348). The Ordinance limiting the number of dogs they may keep does

not reject them from their dwelling. And even if it did, there is no way the Koorns could

predict that their house would “remain available.” Accordingly, the Koorns cannot rely

on the McDonnell Douglas presumption to establish a cause of action under the Fair

Housing Act or 42 U.S.C. §§ 1981, 1982.

E.     Conspiracy Claims

       The Koorns allege that the Mayor, Committeemen, Township employees, Board of

                                              16
Health, and the complaining neighbors “conspired, by agreement tacit or otherwise, to

cause the Board of Health to enact the Ordinance” and argued that the District Court erred

in not finding this to be a cognizable claim under 42 U.S.C. § 1985(3). We disagree.

         In order to state a claim under 42 U.S.C. § 1985(3), a plaintiff must allege: (1) a

conspiracy; (2) motivated by a racial animus designed to deprive, directly or indirectly,

any person or class of persons to the equal protection of the laws; (3) an act in furtherance

of the conspiracy; and (4) an injury to person or property or the deprivation of any right or

privilege of a citizen of the United States. Lake v. Arnold, 112 F.3d 682, 685 (3d Cir.

1997).

         As noted already, the Ordinance is a legitimate social welfare legislation that is

neutral on its face and applies to all Township residents. It does no injury to the Koorns

or their property. As a result, the Koorns do not have a cognizable § 1985(3) claim as a

matter of law. Thus the Koorns’ claim that Township officials failed to halt a conspiracy

in violation of 42 U.S.C. § 1986 must also fail. See Mian v. Donaldson, Lufkin &

Jenrette Sec. Corp., 7 F.3d 1085, 1088 (2d Cir. 1993) (“[A] § 1986 claim must be

predicated upon a valid § 1985 claim.”); Grimes v. Smith, 776 F.2d 1359, 1363 n.4 (7th

Cir. 1985) (“[L]iability under § 1986 is derivative of § 1985(3) liability; without a

violation of § 1985(3), there can be no violation of § 1986.”). The District Court

correctly dismissed the Koorns’ conspiracy claims.




                                               17
F.     Pendant State Claims

       Finally, the Koorns argue that the District Court erred in not recognizing their

various claims under state law. However, because the Court properly dismissed the

Koorns’ federal claims, it properly refused to exercise jurisdiction over their pendant state

claims. 28 U.S.C. § 1367(c)(3).


                                             III.
                                        Conclusion

       For the foregoing reasons, we affirm the District Court’s granting the Township

summary judgment on the Koorns’ claims.




TO THE CLERK:

       Please file the foregoing Opinion.

                                            By the Court,

                                            /s/ Thomas L. Ambro

                                            Circuit Judge




                                              18
