                                             NOT PRECEDENTIAL
                UNITED STATES COURT OF APPEALS
                     FOR THE THIRD CIRCUIT
                          _____________

                              No. 10-2393
                             _____________

                          FRANK T. PERANO,
                       d/b/a GSP Management Co,

                                          Appellant,

                                    v.

       TOWNSHIP OF TILDEN; TROY R. HATT, INDIVIDUALLY AND IN
     HIS CAPACITY AS A TOWNSHIP SUPERVISOR; RUSSELL H. WERLEY,
    INDIVIDUALLY AND IN HIS CAPACITY AS A TOWNSHIP SUPERVISOR;
  JUDY E. ROMIG, INDIVIDUALLY AND IN HER CAPACITY AS A TOWNSHIP
     SUPERVISOR; JOHN YODER, INDIVIDUALLY AND IN HIS CAPACITY
   AS A TOWNSHIP ZONING AND CODE ENFORCEMENT OFFICER; CHERYL
 HAUS, INDIVIDUALLY AND IN HER CAPACITY AS TOWNSHIP SECRETARY;
CARBON ENGINEERING INC.; RONALD TIRPAK, INDIVIDUALLY AND IN HIS
CAPACITY AS THE TOWNSHIP ENGINEER AND THE MUNICIPAL AUTHORITY
                    FOR THE TOWNSHIP OF TILDEN
                          _______________

              On Appeal from the United States District Court
                 for the Eastern District of Pennsylvania
                           (D.C. No. 09-cv-754)
                  District Judge: Hon. Joel H. Slomsky
                            _______________

                Submitted Under Third Circuit LAR 34.1(a)
                             April 12, 2011

          Before: FISHER, JORDAN and COWEN, Circuit Judges.

                          (Filed: April 13, 2011)
                                   _______________

                              OPINION OF THE COURT
                                  _______________

JORDAN, Circuit Judge.

       Frank T. Perano appeals from an order of the United States District Court for the

Eastern District of Pennsylvania granting motions to dismiss filed by Appellees

Township of Tilden (the “Township” or “Tilden”), Troy R. Hatt, Russell H. Werley, Judy

E. Romig, John Yoder, Cheryl A. Haus, Ron Tirpak, and Carbon Engineering, Inc. (with

the Township, collectively the “Defendants”). For the following reasons, we will affirm.

I.     Background1

       This case arises out of Perano‟s dealings with the Township over the development

of a mobile home park he owns in Tilden. He began operating the Pleasant Hills Mobile

Home Park (“Pleasant Hills” or the “park”) in 1990 and has expanded it in phases. As

Pleasant Hills grew, Tilden residents expressed increasing opposition. In response, the

Township attempted to amend its zoning ordinances to prevent further development of

the park.

       In 1997, Perano sued the Township in state court, challenging the proposed zoning

amendment. In 1999, Perano and the Township entered into a consent order to resolve

the state court litigation (the “Consent Order”). The Consent Order provided that the

Township would use its best efforts to make sewage and water facilities available to the

       1
        Because we are reviewing the District Court‟s grant of the Defendants‟ motions
to dismiss, we recount the facts as alleged by the non-movant, Perano. In doing so, we
do not imply any view as to whether those allegations are actually true.

                                            2
park. The Township‟s obligation regarding water and sewage was contingent on Perano

receiving final land development approval for Phases VI and VII of Pleasant Hills.

       In June 2001, the Township approved Phase VII, and, in July 2006, it

conditionally approved Phase VI.2 The conditional approval required Perano to develop

and install sewage collection and water distribution systems for the park, in accordance

with the Pennsylvania Department of Environmental Protection‟s (“PADEP”) rules and

regulations, to allow connection with the existing systems owned by the Township.

       Perano has not completed the water and sewage systems for Phase VI, however,

because of what he alleges is obstructionist and harassing behavior by the Township. He

has catalogued the disputes. He says that the Township took no action to provide public

water to Phase VI. A Township zoning officer inspected Pleasant Hills without notice or

permission and noted several violations, which led the Township to schedule a hearing

regarding the violations. The Township accepted Perano‟s licensing fees in August 2007

without issuing him a license or issuing a denial and refund and then, without giving him

notice or an opportunity to be heard, announced that he was operating the park without a

license. A Township zoning officer issued a stop-work order for any projects at the park

and did not issue any future building permits. The Township sent him a letter saying that

no additional homes could be placed at Pleasant Hills until a license was issued.3 Finally,


       2
           Why the approvals came in reverse numerical order is not apparent from the
record.
       3
         An additional basis alleged for the denial of the license was a letter from PADEP
stating that the mobile home park did not have sufficient sewage capacity to
accommodate additional residents. In response, Perano made an open records request for
                                             3
the Township sought to compel him to cede ten acres from the park to the Township for a

sewer easement.

       In February 2009, Perano sued the Defendants in the District Court.4 In May

2009, the Defendants moved to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of

Civil Procedure. In response, Perano moved to amend his complaint. The District Court

granted Perano leave to amend, specifically to allow him to add PADEP as a party and to

supplement factual allegations for his claims under 42 U.S.C. §§ 1983 and 1985.

       In September 2009, Perano filed an amended complaint that did not add PADEP

and that substituted a Contract Clause claim for the § 1985 claims. The Defendants again

moved to dismiss. After a March 2010 hearing on the motions to dismiss, the District

Court, in April 2010, ordered the lawsuit dismissed with prejudice. This appeal followed.




all documents provided by PADEP to the Township regarding the park‟s supposedly
insufficient sewage capacity. The Township responded that no such documentation
existed. Perano then submitted to the Township documentation that he says demonstrates
sufficient sewage capacity to allow additional residents to locate homes in the park.
Nevertheless, the Township continued to deny permits.
       4
         In April 2009, the Township filed a Declaration of Taking in state court to obtain
a perpetual sanitary sewer easement on a portion of Perano‟s property. The state court
denied Perano‟s preliminary objections to the Declaration of Taking, and Perano
appealed. Perano raised the takings issue in the District Court, but the Court determined
that the issue was not ripe because Perano had not exhausted his state court remedies.
Perano does not challenge that determination on appeal.

                                             4
II.    Discussion5

       Perano argues before us that the District Court erred in dismissing his procedural

due process, substantive due process, Equal Protection, Contract Clause, and conspiracy

claims. He also argues that the District Court erred in denying his request for leave to

further amend and instead dismissing his lawsuit with prejudice.

       We review de novo a district court‟s grant of a motion to dismiss under Rule

12(b)(6). In re Adams Golf, Inc. Sec. Litig., 381 F.3d 267, 273 (3d Cir. 2004). We first

accept all well-pleaded factual allegations as true and disregard the plaintiff‟s legal

conclusions. Fowler v. UPMC Shadyside, 578 F.3d 203, 210-11 (3d Cir. 2009). We

“then determine whether the facts alleged … are sufficient to show that the plaintiff has a

plausible claim for relief.” Id. at 211 (internal quotation marks omitted). To be

“plausible,” the complaint must, through its factual allegations, “permit the court to infer

more than the mere possibility of misconduct.” Id. (internal quotation marks omitted).

       We review for abuse of discretion a district court‟s decisions to dismiss a case

with prejudice and to refuse leave to amend a complaint. Ramsgate Ct. Townhome Ass’n

v. West Chester Borough, 313 F.3d 157, 161 (3d Cir. 2002).

       A.     Procedural Due Process Claim

       To make out a procedural due process claim, Perano must show that the

Defendants deprived him of a protected property interest and that the state procedure for



       5
         The District Court had jurisdiction pursuant to 28 U.S.C. § 1331. We have
jurisdiction pursuant to 28 U.S.C. § 1291.

                                              5
challenging the deprivation was constitutionally inadequate.6 Hill v. Borough of

Kutztown, 455 F.3d 225, 233-34 (3d Cir. 2006); Revell v. Port Auth. of N.Y. & N.J., 598

F.3d 128, 138 (3d Cir. 2010). Assuming, as the parties apparently do, that Perano has

been deprived of a protected property interest, our focus is on the state‟s procedures and

whether they are constitutionally adequate.

       “[A] state provides constitutionally adequate procedural due process when it

provides reasonable remedies to rectify a legal error by a local administrative body.”

DeBlasio v. Zoning Bd. of Adjustment for Twp. of West Amwell, 53 F.3d 592, 597 (3d Cir.

1995), abrogated in part on other grounds by United Artists Theatre Circuit, Inc. v. Twp.

of Warrington, 316 F.3d 392, 400 (3d Cir. 2003). We have previously upheld as

reasonable Pennsylvania‟s post-deprivation judicial remedies for challenging

administrative land use decisions. See Bello v. Walker, 840 F.2d 1124, 1128 (3d Cir.

1988) (holding that Pennsylvania‟s “judicial mechanism with which to challenge the

administrative decision to deny an application for a building permit” was constitutionally

adequate), abrogated in part on other grounds by United Artists, 316 F.3d at 400.

Moreover, post-deprivation hearings and common law tort remedies can be

constitutionally adequate “where the potential length or severity of the deprivation does

not indicate a likelihood of serious loss and where the procedures … are sufficiently

reliable to minimize the risk of erroneous determination.” Memphis Light, Gas & Water

Div. v. Craft, 436 U.S. 1, 19 (1978); see also Revell, 598 F.3d at 138 (recognizing that, in

       6
         For purposes of our analysis, we assume without deciding that all the Defendants
qualified as state actors.

                                              6
some circumstances, post-deprivation hearings and common law tort remedies satisfy due

process).

       Here, for each of the alleged bad acts by the Defendants, there is a reasonable state

remedy, whether it be under the state‟s Municipalities Planning Code, 53 PA. CON. STAT.

ANN. §§ 10101 et seq., or the Eminent Domain Code, 26 PA. CON. STAT. ANN. §§ 101 et

seq., or through other judicial process. As exemplified by the previous litigation between

Perano and the Township, Perano has avenues for challenging the Defendants‟ actions.

Accordingly, he has failed to state a procedural due process claim.

       B.     Substantive Due Process Claim

       To make out a substantive due process claim, Perano must show that the

Defendants deprived him of a protected property interest and that that deprivation

“shocks the conscience.” Chainey v. Street, 523 F.3d 200, 219 (3d Cir. 2008); see also

United Artists, 316 F.3d at 400-02. We again assume arguendo that Perano has been

deprived of a protected property interest and focus on whether the Defendants‟ actions

shock the conscience.

       “„[O]nly the most egregious official conduct‟” shocks the conscience. United

Artists, 316 F.3d at 400 (quoting Cnty. of Sacramento v. Lewis, 523 U.S. 833, 846

(1998)). What is shocking depends on context, id. at 399-400, but, in the land use

context, the standard is sufficiently high to “avoid converting federal courts into super

zoning tribunals,” Eichenlaub v. Twp. of Indiana, 385 F.3d 274, 285 (3d Cir. 2004); see

also United Artists, 316 F.3d at 402 (recognizing that the “shocks the conscience”



                                             7
standard “prevents [the Court] from being cast in the role of a zoning board of appeals”)

(internal quotation marks omitted).

       In Eichenlaub, we held that an inconsistent application of zoning requirements,

unnecessary inspections, delaying permits and approvals, improperly increasing tax

assessments, and “malign[ing] and muzzl[ing]” a property owner were not enough to

shock the conscience when those actions were not coupled with interference with a

constitutionally protected activity or ethnic bias. 385 F.3d at 286. We noted that

complaints related to zoning requirements, inspections, and permits were “frequent in

[land use] planning disputes” and that, while adversely affected property owners can

couch such complaints as abuses of legal authority, the complaints do not rise to the level

of substantive due process violations. Id.

       So too here, Perano‟s complaints are of the sort frequently at issue in land use

disputes. He has not alleged any conduct by the Defendants that can be said to shock the

conscience and therefore has failed to state a substantive due process claim.

       C.     Equal Protection Claim

       To make out an Equal Protection claim as a “class of one,” as Perano now

attempts, he must show that he was “intentionally treated differently from others

similarly situated and that there [was] no rational basis for the difference in treatment.”

Vill. of Willowbrook v. Olech, 528 U.S. 562, 564 (2000); see also Borough of Kutztown,

455 F.3d at 239 (quoting Olech). To be “similarly situated,” parties must be “alike in all

relevant aspects.” Startzell v. City of Philadelphia, 533 F.3d 183, 203 (3d Cir. 2008)

(internal quotation marks omitted). At the motion to dismiss stage, Perano must allege

                                              8
facts sufficient to make plausible the existence of such similarly situated parties. See

Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009); see also Toussie v. Town Bd. of East

Hampton, 2010 WL 597469, *6 n.3 (E.D.N.Y. Feb. 17, 2010) (viewing Iqbal as

“requir[ing] sufficient factual allegations to make the conclusion of similarly situated

plausible” and noting that pre-Iqbal cases not requiring such “are problematic in view of

Iqbal”).

       Here, Perano has simply alleged that he was treated differently from “other

similarly situated residential and commercial developers.” (App. at 51.) Without more

specific factual allegations as to the allegedly similarly situated parties, he has not made

plausible the conclusion that those parties exist and that they are like him in all relevant

aspects. Accordingly, Perano has failed to state an Equal Protection claim.

       D.     Contract Clause Claim

       The Constitution‟s Contract Clause, set forth in Article I, Section 10, provides that

“[n]o State shall … pass any … Law impairing the Obligation of Contracts.” U.S.

CONST. ART. I, § 10. To make out a claim under that clause, Perano must show that “a

change in state law has operated as a substantial impairment of a contractual

relationship.” Transport Workers Union of Am., Local 290 v. SEPTA, 145 F.3d 619, 621

(3d Cir. 1998) (internal quotation marks omitted). A court makes three threshold

inquiries in evaluating a Contract Clause claim: “(1) whether there is a contractual

relationship; (2) whether a change in a law has impaired that contractual relationship; and

(3) whether the impairment is substantial.” Id. Significantly, the claim must rest on an

exercise of legislative power, not the acts of administrative or executive boards or

                                              9
officers. New Orleans Waterworks Co. v. La. Sugar Ref. Co., 125 U.S. 18, 30 (1888); see

also Kinney v. Conn. Judicial Dep’t, 974 F.2d 313, 314 (2d Cir. 1992) (quoting New

Orleans Waterworks and reiterating that violations of the Contract Clause arise from

legislative action).

       Here, Perano alleges that the Township‟s actions in enforcing ordinances, issuing

stop work orders, denying permits, and the like have violated the terms of the Consent

Order. However, none of those actions was an exercise of legislative power. Put more

simply, the Township did not change any laws; it merely enforced them in a way that

allegedly impaired Perano‟s rights under the Consent Order. Accordingly, Perano has

failed to state a Contract Clause claim.

       E.     Conspiracy

       To make out a conspiracy claim under § 1983, Perano must show that “persons

acting under color of state law conspired to deprive him of a federally protected right.”

Ridgewood Bd. of Educ. V. N.E. ex rel. M.E., 172 F.3d 238, 254 (3d Cir. 1999). As a

threshold matter, however, a § 1983 conspiracy claim only arises when there has been an

actual deprivation of a 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)

(recognizing that deprivation of a right was a necessary predicate to § 1983 conspiracy

liability). Perano has failed to clear that threshold, as he has not shown an actual

deprivation of any federally protected right. Accordingly, he has failed to state a § 1983

conspiracy claim.



                                             10
       F.     Denial of Leave to Amend and Dismissal with Prejudice

       “[A] district court has discretion to deny a request to amend if it is apparent from

the record that … the amendment would be futile[.]” Hill v. City of Scranton, 411 F.3d

118, 134 (3d Cir. 2005).

       The record before the District Court included Perano‟s original and amended

complaints, his exhibits, his responses to the motions to dismiss, and his arguments at the

March 2010 hearing. The District Court, then, was well-acquainted with Perano‟s

allegations of the Defendants‟ misconduct and had afforded him ample opportunity to

supplement or clarify those allegations. Given that, it was reasonable for the District

Court to conclude that Perano had already presented his most damning allegations and

that no further amendment would cure the factual deficiencies. Accordingly, it was not

an abuse of discretion for the District Court to deny leave to amend and dismiss with

prejudice.

III.   Conclusion

       For the foregoing reasons, we will affirm the District Court‟s order dismissing

Perano‟s lawsuit with prejudice.




                                             11
