                                                           NOT PRECEDENTIAL

                   UNITED STATES COURT OF APPEALS
                        FOR THE THIRD CIRCUIT
                             ___________

                                No. 13-1477
                                ___________

                           MARLENE S. MILLER

                                      v.

 POCONO RANCH LANDS PROPERTY OWNERS ASSOCIATION INC., and its
    President; KATHLEEN SIMONCIC, and its Treasurer and Member; ROY
BORGFIELD, and its board member and its Secretary; PAUL D. MENDITTO, and its
Community Manager; DAVID CAVANAUGH; LEHMAN TOWNSHIP PLANNING
COMMISSION, and its Chairman; RICHARD C. VOLLMER, in their official capacity
                                   only

                           Marlene S. Miller, and
               *Maria Grusha-Manta, a/k/a Mary Motidai Goriah,
                                               Appellants

                        *(Pursuant to F.R.A.P. 12(a))
                  ____________________________________

                On Appeal from the United States District Court
                    for the Middle District of Pennsylvania
                    (D.C. Civil Action No. 3-11-cv-00317)
                  District Judge: Honorable Joel H. Slomsky
                 ____________________________________

                Submitted Pursuant to Third Circuit LAR 34.1(a)
                              February 20, 2014

    Before: FUENTES, GREENBERG and VAN ANTWERPEN, Circuit Judges

                       (Opinion filed February 21, 2014)
                                 ___________

                                 OPINION
                                ___________
PER CURIAM

         Pro se appellant Marlene Miller appeals the District Court’s order dismissing her

third amended complaint under Rule 12(b)(6) of the Federal Rules of Civil Procedure.

We have jurisdiction under 28 U.S.C. § 1291 and exercise a plenary standard of review.

See Fleisher v. Standard Ins. Co., 679 F.3d 116, 120 (3d Cir. 2012). For the reasons set

forth below, we will affirm the District Court’s judgment.

         This case concerns a land dispute. In 2010, Miller acquired a parcel of property

from her aunt, Maria Grusha. That property is located within the Pocono Ranch Lands

Property Owners Association Inc. (“the Association”). Miller’s third amended complaint

— the operative complaint in this appeal — alleges that the Association, the individuals

who control it, and certain Lehman Township officials (collectively, “the defendants”)

have acted improperly in the following ways: (1) they have failed to recognize that

Miller’s property is deeded commercial, not residential; (2) they have sent fee and

assessment bills to her1; (3) they denied her request for a variance that would have

allowed her to use the property for commercial purposes; and (4) by placing an easement

on the property and refusing to allow her to use the property for commercial purposes,

they have effectively taken the property. Based on these allegations, she asserted

numerous federal and state claims.

         The defendants filed motions to dismiss the third amended complaint pursuant to

Fed. R. Civ. P. 12(b)(6), and in a thorough report and recommendation, a Magistrate


1
    It appears that the Association charges property owners for items like road maintenance
                                              2
Judge recommended that the District Court grant those motions and dismiss the

complaint. The District Court adopted that report and recommendation and dismissed the

action. Miller then filed a timely notice of appeal to this Court.

       We agree in full with the District Court’s disposition of this case. As an initial

matter, the Court was correct to hold that Miller, as a pro se plaintiff, is not permitted to

represent Grusha in this action. See Lazaridis v. Wehmer, 591 F.3d 666, 672 (3d Cir.

2010). This same prohibition prevents her from representing her late uncle’s estate. See

Malone v. Nielson, 474 F.3d 934, 937 (7th Cir. 2007) (per curiam). The District Court

thus did not err in dismissing those claims that Miller purported to assert on behalf of

others, although we stress that the dismissal as to these claims is without prejudice. See,

e.g., Berrios v. N.Y.C. Hous. Auth., 564 F.3d 130, 135 (2d Cir. 2009). Further, since

Grusha herself did not participate in the action before the District Court, she is not a

proper party in this appeal. See United States v. Stoerr, 695 F.3d 271, 275-76 (3d Cir.

2012). Accordingly, we will consider only Miller’s claims.

       Miller first argues that the defendants violated her rights under 42 U.S.C. §§ 1981

and 1982. However, as the District Court noted, these statutes outlaw racial

discrimination. See Brown v. Philip Morris Inc., 250 F.3d 789, 797 (3d Cir. 2001).

Miller has not alleged that she is a racial minority or that the defendants’ alleged

misconduct was racially motivated. Therefore, the District Court properly dismissed

these claims. See id.




and public-safety services.
                                              3
       Miller’s claim under 42 U.S.C. § 1985(3) suffers from a similar infirmity. To state

a claim under § 1985(3), the “claimant must allege some racial, or perhaps otherwise

class-based, invidiously discriminatory animus behind the conspirators’ action.” Farber

v. City of Paterson, 440 F.3d 131, 135 (3d Cir. 2006) (quotation marks omitted). As

noted above, Miller has not alleged racial discrimination; further, she has not identified

any other class to which she belongs that is cognizable under § 1985. See id. at 136.

Thus, the District Court was also correct to dismiss this claim.

       Miller further asserts several claims under 42 U.S.C. § 1983; as the District Court

concluded, none of these claims has merit. First, Miller contends that the defendants, in

denying her request for a variance, violated her procedural-due-process rights. To state a

procedural-due-process claim, Miller must show, among other things, that the state

“procedures available to [her] did not provide due process of law.” Hill v. Borough of

Kutztown, 455 F.3d 225, 234 (3d Cir. 2006) (quotation marks omitted). However,

Pennsylvania affords a full judicial mechanism for an aggrieved landowner to challenge

the decision to deny a variance. See, e.g., DeFilippo v. Cranberry Twp. Bd. of

Supervisors, 49 A.3d 939, 941-42 (Pa. Commw. Ct. 2012). We have held that these

procedures provide due process, which is fatal to Miller’s claim. See Rogin v. Bensalem

Twp., 616 F.2d 680, 694-95 (3d Cir. 1980).

       Miller also contends that the defendants violated her substantive-due-process

rights. This claim likewise fails as a matter of law. To state a substantive-due-process

claim in a land-use case, the plaintiff must show that the defendants’ conduct “shocks the

conscience.” Eichenlaub v. Twp. of Indiana, 385 F.3d 274, 285 (3d Cir. 2004). We have

                                             4
previously concluded that claims similar to Miller’s — such as that the defendants

applied zoning requirements unfairly, pursued unnecessary enforcement actions, and

delayed permits and approvals — failed to satisfy this standard. See id. at 286. Thus, we

will affirm the District Court’s dismissal of this claim.

       In Miller’s final § 1983 claim, she argues that, by placing a restrictive easement on

the property and refusing to allow her to use the property for commercial purposes, the

defendants have taken the property under the Fifth Amendment. However, “[a] plaintiff

must first seek compensation through the procedures the State has provided for doing so

before asserting a federal takings claim.” Chainey v. Street, 523 F.3d 200, 222 (3d Cir.

2008). Miller has admittedly not done so, and as a consequence, this claim is not yet ripe

for our review. See id. at 222-23.

       Finally, Miller claims that the defendants violated the civil RICO statute. See 18

U.S.C. § 1962(c). In order to state a RICO claim, Miller must plausibly allege the

following elements: “(1) conduct (2) of an enterprise (3) through a pattern (4) of

racketeering activity.” Sedima, S.P.R.L. v. Imrex Co., 473 U.S. 479, 496 (1985)

(footnote omitted). In order to have standing to litigate a civil RICO claim, a plaintiff

must show that she suffered an injury to her business or property and that the injury was

proximately caused by the defendant’s racketeering activities. See, e.g., Maio v. Aetna,

Inc., 221 F.3d 472, 483 (3d Cir. 2000).

       There are a few problems with Miller’s RICO claim. First, her allegations

concerning the defendants’ alleged misconduct are vague and conclusory, and are simply

insufficient to state a valid RICO claim. See, e.g., Lum v. Bank of Am., 361 F.3d 217,

                                              5
223-24 (3d Cir. 2004). Moreover, Miller has not pleaded that she suffered the requisite

injury to her business or property. While Miller alleges that Grusha was injured, a

plaintiff cannot sustain a RICO claim based on “harm flowing merely from the

misfortunes visited upon a third person by the defendant’s acts.” Brokerage Concepts,

Inc. v. U.S. Healthcare, Inc., 140 F.3d 494, 521 (3d Cir. 1998) (quotation marks omitted).

Further, although Miller contends that the defendants committed mail or wire fraud by

sending assessment bills to her, Miller also asserts that she knew, even before she owned

the property, that these bills were unwarranted; it does not appear that she has ever made

any payment on them. Thus, Miller cannot establish either that the defendants committed

fraud or that she suffered an injury. See Ideal Dairy Farms, Inc. v. John Labatt, Ltd., 90

F.3d 737, 746-47 (3d Cir. 1996).2

       Appellees, for their part, ask us to impose damages and costs for the filing of a

frivolous appeal under Federal Rule of Appellate Procedure 38. An appeal is deemed

frivolous if it is “wholly without merit.” Quiroga v. Hasbro, Inc., 943 F.2d 346, 347 (3d

Cir. 1991). While Rule 38 damages might be appropriate if Miller had filed this appeal

with the aid of counsel, “an unrepresented litigant should not be punished with damages

for [her] failure to appreciate legal subtleties in legal arguments.” Beam v. Bauer, 383

F.3d 106, 109 (3d Cir. 2004). Accordingly, we will not impose damages against Miller;

we will, however, tax costs against her under Federal Rule of Appellate Procedure

39(a)(2).


2
  Having dismissed Miller’s federal claims, the District Court acted within its discretion
in declining to exercise supplemental jurisdiction over her state-law claims. See 28
                                             6
       We will therefore affirm the District Court’s judgment. Appellees’ Rule 38

motion is denied. Miller’s request for a jury trial is denied.




U.S.C. § 1367(c)(3); Figueroa v. Buccaneer Hotel Inc., 188 F.3d 172, 181 (3d Cir. 1999).
                                              7
