                                                               NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT


                                    No. 09-3053


              DB ENTERPRISE DEVELOPERS & BUILDERS, INC,
                                      Appellant

                                         v.

              NICHOLAS A. MICOZZIE, in his individual capacity;
                THOMAS MICOZZIE, in his individual capacity;
                      UPPER DARBY TOWNSHIP


           APPEAL FROM THE UNITED STATES DISTRICT COURT
             FOR THE EASTERN DISTRICT OF PENNSYLVANIA
                         (D.C. Civil No. 08-cv-05076)
                  District Judge: Honorable Stewart Dalzell


                    Submitted Under Third Circuit LAR 34.1(a)
                               September 14, 2010


             Before: SLOVITER, BARRY and SMITH, Circuit Judges

                         (Opinion Filed: September 17, 2010)


                                     OPINION




BARRY, Circuit Judge

     D.B. Enterprise Developers & Builders, Inc. (“DB”) appeals from the judgment of
the District Court dismissing its 42 U.S.C. § 1983 claim. DB alleges that defendants

forced it to undertake expensive sewer construction on public roadways by threatening to

disrupt DB’s development of a private parcel of land if it failed to do so. We will affirm.

                                    BACKGROUND 1

       In 2004, DB sought to develop for residential use a parcel of land adjacent to

Bishop Avenue in Springfield, Pennsylvania known as Springfield Knoll. Bishop Avenue

also borders Upper Darby, Pennsylvania, and DB claims that Upper Darby, along with its

state representative, Nicholas Micozzie (“Nicholas”), and Thomas Micozzie (“Thomas”),

who currently serves as its Mayor, repeatedly “demanded that DB perform [offsite] work

on the Upper Darby side of Bishop Avenue.” (App. at 9.) According to DB’s president,

Davoud Baravordeh, Nicholas promised “state funding and/or materials for purposes of

this construction,” but also warned that unless Baravordeh agreed to carry out these

demands, Nicholas would use his “political power to shut down work on the entire

Springfield Knoll project.” (Id. at 10.) Nicholas explained that the construction work

“was important to Thomas Micozzie’s upcoming election bid for Upper Darby Township

Council.” (Id.)

       DB spent $180,000 in construction work related to sewers along Bishop Avenue in

Upper Darby, and was not reimbursed for its work. Nicholas and Thomas also demanded


   1
      Given the parties’ familiarity with this case, we set out the facts in summary fashion,
accepting “all well-pleaded allegations in the complaint as true, and view[ing] them in the
light most favorable to the plaintiff.” Carino v. Stefan, 376 F.3d 156, 159 (3d Cir. 2004).

                                            -2-
that unless DB perform work on the sidewalks and curbs along Bishop Avenue without

reimbursement, they would “shut down” work on Springfield Knoll. (Id. at 11.) On

October 22, 2007, the same day that Nicholas scheduled a meeting that Baravordeh failed

to attend, three Pennsylvania Department of Transportation (“PennDOT”) “officials

arrived “at the Springfield Knoll construction site and . . . abruptly commanded Mr.

Baravordeh to stop work on the project on several pretexts” and “trivial excuse[s].” 2 (Id.

at 12.) Later that week, PennDOT officials demanded that unless DB replaced all curbs

and sidewalks on the Upper Darby side of Bishop Avenue at no cost, the Springfield

Knoll project would be shut down “permanently.” (Id.) DB reluctantly agreed to comply,

but the complaint does not allege that DB, in fact, performed any work on those curbs and

sidewalks. DB claims that PennDOT officials – at the behest of the Micozzies – continue

to harass and pressure it to complete free work for Upper Darby.

       DB filed a two-count amended complaint in the District Court naming as

defendants both Thomas and Nicholas, in their individual capacities, and Upper Darby

Township. In Count 1, a claim under 42 U.S.C. § 1983, DB alleged that defendants

violated its 14th Amendment due process rights by engaging in “arbitrary and outrageous

government interference” with its business by “forcing” it to perform work outside of

Springfield Knoll without payment. (Id. at 13-14.) DB sought as damages the costs of


   2
     This turn of events was surprising to DB because a PennDOT official had visited
Springfield Knoll each work day from July through October, always approving of DB’s
progress.

                                           -3-
performing work for Upper Darby, which the complaint quantifies as approximately

$180,000 in sewer construction. In Count 2, DB claimed unjust enrichment under state

law.

       On June 18, 2009, the District Court granted defendants’ motions to dismiss. As

to Count 1, it granted Upper Darby’s unopposed motion, and granted Thomas’ motion

after finding no connection between Thomas and the sewer construction, which was “the

only unlawfully coerced work DB alleges it has done.” (Id. at 24.) The Court also found

that Nicholas’s threats to use his political influence to derail the Springfield Knoll project

did not shock the conscience such that they violated DB’s constitutional rights. It

declined to exercise supplemental jurisdiction over Count 2. DB timely appealed.

                                      DISCUSSION 3

       DB argues that both Nicholas and Thomas Micozzie violated its substantive due

process rights by forcing it to choose between performing $180,000 in sewer construction

or having its development at Springfield Knoll disrupted.4 Our review of the District

Court’s order granting the motions to dismiss is plenary. Monroe v. Beard, 536 F.3d 198,

205 (3d Cir. 2008). To survive a motion to dismiss, DB must “allege facts that raise a

right to relief above the speculative level on the assumption that the allegations in the



   3
      The District Court had jurisdiction pursuant to 28 U.S.C. § 1331, and we have
jurisdiction pursuant to 28 U.S.C. § 1291.
   4
     This appeal does not concern Count 2 of the Complaint, and DB does not challenge
the District Court’s ruling granting Upper Darby’s motion to dismiss Count 1.

                                             -4-
complaint are true (even if doubtful in fact).” Victaulic Co. v. Tieman, 499 F.3d 227, 234

(3d Cir. 2007) (internal quotations and citation omitted).

       “To establish a substantive due process claim, a plaintiff must prove the particular

interest at issue is protected by the substantive due process clause and the government’s

deprivation of that protected interest shocks the conscience.” Chainey v. Street, 523 F.3d

200, 219 (3d Cir. 2008) (citing United Artists Theatre Circuit, Inc. v. Twp. of Warrington,

316 F.3d 392, 400-02 (3d Cir. 2003)). We have previously held that “real property

ownership” is an interest entitled to substantive due process protection, Nicholas v. Pa.

State Univ., 227 F.3d 133, 141 (3d Cir. 2000), where the government conduct is “so

egregious, so outrageous, that it may fairly be said to shock the contemporary

conscience,” Kaucher v. County of Bucks, 455 F.3d 418, 425 (3d Cir. 2006).

       DB’s complaint alleges that defendants, through articulated threats and unfulfilled

promises, forced it to perform sewer construction in exchange for the right to develop

Springfield Knoll without interruption.5 DB had a property interest in Springfield Knoll

worthy of substantive due process protection. That having been said, however, and as


   5
     As the District Court noted, DB’s complaint fails to allege any facts connecting
Thomas to Nicholas’s demand that DB perform sewer work. Nor does the complaint
allege any facts in support of DB’s assertion to us that “since Thomas was present when
Nicholas made some of these threats, it is fair to allege that Thomas and Nicholas
conspired to violate DB’s rights through extortion.” (Appellant’s Br. at 8-9.) Absent
sufficient factual allegations of a conspiracy, we are “not required to accept legal
conclusions alleged in the complaint.” Mayer v. Belichick, 605 F.3d 223, 229 (3d Cir.
2010). Accordingly, the District Court did not err in granting Thomas’s motion to dismiss
Count 1.

                                            -5-
shameful as Nicholas’s alleged conduct is – allegations we are required to accept as true –

DB has failed to state a substantive due process claim. First, DB does not allege that

Nicholas’s coercion with reference to the sewer construction interrupted its operations at

Springfield Knoll. The complaint alleges that on October 22, 2007, “PennDot officials

appeared at the Springfield Knoll construction site and, without any legal basis, abruptly

commanded Mr. Baravordeh to stop work on the project on several pretexts,” but

PennDOT is not a defendant here. (App. at 12.) Even had PennDOT been acting “in

concert with and/or at the direction of” Nicholas, its actions on October 22 concerned the

demand – conveyed shortly thereafter at a meeting on October 24 – that DB replace curbs

and sidewalks. (Id. at 11-12.) Accordingly, DB has not set out a factual basis for the

claim that it was denied the use and enjoyment of its property as a result of the sewer-

related coercion.

       Even assuming that Nicholas’s threats did interfere with DB’s use and enjoyment

of its property, such “[d]eprivation violates due process only when it ‘shocks the

conscience,’” an extremely difficult standard to meet. See Chainey, 523 F.3d at 219

(quoting United Artists, 316 F.3d at 400) (quotations omitted). In Eichenlaub v.

Township of Indiana, we found that the township’s efforts in selectively enforcing zoning

laws, pursuing unannounced and unnecessary inspections, and improperly increasing tax

assessments were not such that they shocked the conscience, particularly because there

were no allegations that the defendants were motivated by corruption, self-dealing, or bias


                                            -6-
against a particular ethnic group. 385 F.3d 274, 286 (3d Cir. 2004). Nicholas’s conduct

here is comparable to the conduct that we found to be less than conscience-shocking in

Eichenlaub. To the extent that DB claims that the case before us “clearly involves

corruption and self-dealing,” its complaint does little to support such a contention.

(Appellant’s Br. at 12.) Indeed, there is no allegation that Nicholas had a financial or

ownership interest in Bishop Avenue’s sewers or their environs, and the only benefit to

Nicholas that DB alleges is that Thomas’s political ambitions would be furthered by the

improvement of those sewers and their environs.

       DB attempts to distinguish its case from those cited by the District Court in

support of the Court’s holding that Nicholas’s threats do not shock the conscience. We

note just one. In Corales v. Bennett, the Court of Appeals for the Ninth Circuit found that

a school official’s threats to students that they would face fines and juvenile hall

sentences were not threats “egregious enough to shock the conscience.” 567 F.3d 554,

568 (9th Cir. 2009). DB claims that in Corales, “the students were threatened and

nothing more, while DB was threatened and forced to perform $180,000 of work on the

basis of the threat.” (Appellant’s Br. at 12-13.) Nicholas’s threats, however, were no

more egregious than those in Corales, and at no point was DB stopped from developing

Springfield Knoll as a result of the threat concerning sewer construction. We conclude,

therefore, that Nicholas’s coercion of DB to perform services to benefit Upper Darby’s

sewer system and his false promise of reimbursement with state funds are not such that


                                            -7-
they shock the conscience.

        Having found that DB was not restricted in its use and development of Springfield

Knoll as a result of Nicholas’s sewer-related threats and false promises, and that those

threats and promises were not such that they shock the conscience, we conclude that the

District Court appropriately granted the motions to dismiss.6

                                      CONCLUSION

        We will affirm the judgment of the District Court.




   6
       Given this disposition, we need not address the issue of sovereign immunity.

                                            -8-
