                                                        NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                       No. 17-2457
                                       ___________

                                ALVIN WASHINGTON,
                                            Appellant

                                             v.

                                  JUSTIN BODER;
                             ADAM JOSEPH HOFFMAN
                       ____________________________________

                     On Appeal from the United States District Court
                        for the Eastern District of Pennsylvania
                           (E.D. Pa. Civ. No. 5:14-cv-04972)
                       District Judge: Honorable Juan R. Sánchez
                      ____________________________________

                    Submitted Pursuant to Third Circuit LAR 34.1(a)
                                   January 28, 2019
            Before: CHAGARES, BIBAS and GREENBERG, Circuit Judges

                             (Opinion filed January 29, 2019)
                                      ___________

                                        OPINION*
                                       ___________

PER CURIAM

       Alvin Washington appeals an adverse judgment entered by the District Court in

this action brought under 42 U.S.C. § 1983. The District Court had granted motions to


*
 This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
dismiss filed under Fed. R. Civ. P. 12(b)(6), concluding that Washington had failed to

state a viable civil rights claim. We will affirm.

                                              I.

         Washington was a tenant of 1039 Marion Street in Reading, Pennsylvania.1 So,

too, was Lisa Ganns, the mother of Washington’s son. During a February 2013 Super

Bowl party, three Reading police officers arrived at 1039 Marion Street in response to a

domestic violence complaint by Ganns. An arrest of Washington ensued. At the

conclusion of a post-arrest preliminary hearing—at which ADA Justin Bodor2 served as

prosecutor—Washington was released on bail.3

         Months later, on September 17, 2013, Officer Adam Hoffman of the Reading

police responded to another complaint from Ganns, who had reported that Washington

broke her computer, threatened her life, and possessed a rifle at their residence. Although


1
 We accept as true all plausible allegations of fact in Washington’s third amended
complaint. Baldwin v. Univ. of Pittsburgh Med. Ctr., 636 F.3d 69, 73-74 (3d Cir. 2011).
2
    We use the correct spelling of Bodor’s name (not “Boder”) in the body of this Opinion.
3
  During that hearing, Washington (who is Black) testified that he was assaulted by the
(all white) arresting officers. Washington would later allege that “a white man would
have been treated differently . . ..” Bodor’s Supp. App’x Vol. I (“A###”), p. 56.
Allegations quoted here and elsewhere are from Washington’s operative pleading, which
is contained in a supplemental appendix filed by Bodor, whose motion for leave to file it
is granted. To the extent that Bodor also moved to expand the record on appeal, the
motion is granted in part, insofar as the documents he included in the supplemental
appendix—separate from those described in Fed. R. App. P. 10(a) and 30(a)(1), and
Third Circuit L.A.R. 30.3(a)—are publicly available state court docket sheets. Cf. Indian
Palms Assocs., Ltd., 61 F.3d 197, 205-06 (3d Cir. 1995) (“Judicial notice may be taken at
any stage of the proceeding, including on appeal, as long as it is not unfair to a party to
do so and does not undermine the trial court’s factfinding authority.”) (internal quotations
and citations omitted). The motion to expand is otherwise denied.
                                              2
Officer Hoffman found no ‘firearms’ in the home4, a phone call between him and Bodor

resulted in a decision to have Washington “evicted” without a court order.5

         In 2014, Washington filed this pro se civil rights action against a handful of

government officers and entities, but only his Fourteenth Amendment procedural due

process claim against Bodor and Officer Hoffman (collectively, “Defendants”) is

pertinent to this appeal.6 Washington specifically claimed that the September 17, 2013

“eviction” was a deprivation of his valid leasehold interest in continued residency at 1039

Marion Street. Washington also claimed that Defendants effected his removal from the


4
    It was determined “that the rifle . . . identified by Ganns was a BB gun.” A057.
5
 Bodor called Officer Hoffman after being contacted by Ganns. Washington alleged that
Bodor alerted Officer Hoffman to Washington’s release on bail—related to the February
2013 incident of domestic violence involving Ganns—and that Bodor directed Officer
Hoffman to keep Washington away from the home. Officer Hoffman, for his part, told
Washington after he was “evicted” that he would be arrested if he ever entered the home
again. The details of what allegedly transpired next were set forth in Washington’s
second amended complaint, but were omitted from the third. We have not considered the
allegations in the second amended complaint or other superseded pleadings as part of our
analysis. Cf. W. Run Student Hous. Assocs., LLC v. Huntington Nat’l Bank, 712 F.3d
165, 173 (3d Cir. 2013) (explaining that, “at the motion to dismiss stage . . . the district
court typically may not look outside the four corners of the amended complaint”).
6
  The District Court dismissed all claims against Berks County and the City of Reading
because Washington presented no allegations supporting liability under Monell v.
Department of Social Services, 436 U.S. 658 (1978). Claims against Reading’s District
Attorney, Chief of Police, and Mayor were dismissed because Washington’s theory of
respondeat superior liability is not permissible in a § 1983 action. Washington’s
malicious prosecution claim was dismissed because none of his convictions had been
invalidated; Bodor also was entitled to absolute immunity under Imbler v. Pachtman, 424
U.S. 409 (1976), relating to that claim. Washington withdrew his claims against the
Attorney General of Pennsylvania. Later in the proceeding, the District Court denied
Washington’s motion to tack on a Fourth Amendment claim, concluding that such a
request was unreasonably belated, and futile in any event given the plainly expired two-
year statute of limitations applicable to the claim.
                                               3
property without first affording him an opportunity to contest the basis for such action,

even though there was “no imminent danger that warranted an eviction.” A059.

       Defendants separately filed motions to dismiss under Rule 12(b)(6). The District

Court granted the motions and dismissed Washington’s claims with prejudice. The

District Court concluded that Washington failed to adequately plead, among other things,

a procedural due process claim under the Fourteenth Amendment. Relying on public

court records, the District Court determined that Washington and Ganns were defendants

in successful eviction proceedings brought by their landlord months before the September

17, 2013 encounter with Officer Hoffman, and that Washington thus had no protectable

property interest in the home at that time. Washington appealed.7

                                              II.

       The main issue on appeal is whether Washington’s procedural due process claim

was properly dismissed at the pleading stage.8 When assessing the viability of such

claims, “we employ the familiar two-stage analysis, inquiring (1) whether the asserted

individual interests are encompassed within the fourteenth amendment’s protection of


7
 We have jurisdiction under 28 U.S.C. § 1291, and our review is plenary, see Foglia v.
Renal Ventures Mgmt., LLC, 754 F.3d 153, 154 n.1 (3d Cir. 2014). Dismissal under
Rule 12(b)(6) is proper if the pleading party fails to allege sufficient factual matter that, if
accepted as true, could “state a claim to relief that is plausible on its face.” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (citation omitted).
8
 For substantially the reasons given in its memorandum order, the District Court properly
dismissed Washington’s apparent equal protection and conspiracy claims. In particular,
we agree with the District Court that Washington pleaded no plausible facts showing
gender- or race-based discrimination, or disparate treatment from which such
discrimination could be inferred. We also agree that his civil rights conspiracy claim was
properly dismissed for want of an adequately pleaded, underlying substantive claim.
                                               4
life, liberty, or property; and (2) whether the procedures available provided the plaintiff

with due process of law.” Alvin. v. Suzuki, 227 F.3d 107, 116 (3d Cir. 2000) (internal

citation and quotation marks omitted).

       The District Court ruled that Washington was no longer a leaseholder, and

therefore lacked a protected property interest in 1039 Marion Street, on September 17,

2013—the day Officer Hoffman ordered Washington to either abandon his residence or

face arrest.9 To support its ruling, the District Court cited court records extrinsic to

Washington’s pleading. The parties direct our attention to those records and a number of

other extra-pleading documents, competing interpretations of which support their

‘property interest’ arguments on appeal.10

       We need not resolve the ‘property interest’ issue, however, because the District

Court’s decision is supported by an alternative ground. See Murray v. Bledsoe, 650 F.3d

246, 247 (3d Cir. 2011) (per curiam). Defendants have argued that, even if Washington

were deprived of his interest in 1039 Marion Street, post-deprivation process available to



9
 The Clerk of this Court asked the parties to brief, among things, “whether the District
Court record, including the two docket sheets related to the landlord/tenant actions, see
Herbert v. Washington, Docket No. MJ-23309- LT-0000050-2013 (Berks Cty. Magis.
Dist. Ct.); Herbert v. Washington, Docket No. MJ- 23309-LT-0000336-2013 (Berks Cty.
Magis. Dist. Ct.), establish that Appellant did not have a property interest in the residence
at issue at the time of the alleged eviction on September 17, 2013.”
10
  Regardless whether the District Court is reviewing a motion to dismiss under Rule
12(b)(6) or we are reviewing the District Court’s ruling on such a motion, the scope of
properly considered materials is limited to “the complaint, exhibits attached to
the complaint, matters of public record, as well as undisputedly authentic documents if
the complainant’s claims are based upon these documents.” Davis v. Wells Fargo, 824
F.3d 333, 341 (3d Cir. 2016) (citation and internal quotations omitted).
                                               5
him was constitutionally adequate to test the validity of the eviction. With due regard to

the peculiar facts alleged, we agree. We conclude as a matter of law that Washington

failed to plausibly plead an absence of adequate procedures to vindicate the property

interest he claims was unlawfully taken away. On that basis, we will affirm.

       The general rule is that government must provide procedural due process before

depriving persons of their property. See Zinermon v. Burch, 494 U.S. 113, 127 (1990).

However, where “the complained of conduct is ‘random and unauthorized’ (so that state

authorities cannot predict when such unsanctioned deprivations will occur),” “the very

nature of the deprivation ma[kes] predeprivation process impossible,” and

“postdeprivation process is all that is due.” Brown v. Muhlenberg Twp., 269 F.3d 205,

213 (3d Cir. 2001). Such is the case here, accepting as true Washington’s allegations that

his removal from 1039 Marion Street was not predicated on an arrest warrant or the terms

of a court order or an otherwise valid source of authority, but was instead effected

through an ultra vires scheme devised by Bodor and carried out by Officer Hoffman.

       Having determined that Washington was due only post-deprivation process, we

must examine the adequacy of that process. Doing so leads to the conclusion, as a matter

of law, that Washington was afforded a meaningful opportunity to challenge the basis of

his alleged eviction on September 17, 2013. Publicly available court filings amenable to

judicial notice on appeal, see Indian Palms, supra, 61 F.3d at 205-06, reveal the

following: two days after the alleged eviction, a hearing was held in a pending landlord-

tenant action related to Washington’s legal relationship with the subject residence, see



                                             6
Dist. Ct. ECF No. 37 (Officer Hoffman’s motion to dismiss), p. 19 (Exhibit “B”)11; and

three days after the alleged eviction, a hearing was held to determine the conditions of

Washington’s bail, see A075, which conditions Washington had argued to Officer

Hoffman on September 17, 2013, permitted him to live at 1039 Marion Street

notwithstanding the presence there of Ganns, see A058.

       It is of no moment that Washington apparently did not appear for one or more

court hearings following the eviction. Due process requires that the government afford a

legitimate “opportunity” to challenge a deprivation of a protected interest; that a litigant

failed to take advantage of the opportunity does not make the otherwise-adequate process

unconstitutional. See Midnight Sessions, Ltd. v. City of Philadelphia, 945 F.2d 667, 680

(3d Cir. 1991).

       Therefore, based on the “matters of public record” identified above, Davis, 824

F.3d at 341, it is plain that Washington was given constitutionally adequate post-




11
   Notwithstanding the parties’ filing three separate supplemental appendices, none of the
appendices, surprisingly, contained the docket sheet for Herbert v. Washington, Docket
No. MJ- 23309-LT-0000336-2013 (Berks Cty. Magis. Dist. Ct.), the potential relevance
of which was flagged by the Clerk in an order entered November 21, 2017, see Footnote
9, supra. Additionally, we note that while Washington was granted leave to file a
supplemental appendix, he was instructed that “[i]f the contents of the supplemental
appendix . . . are not a part of the District Court record, a motion to expand the District
Court record must . . . be filed within [21 days of March 29, 2018].” Washington
submitted a supplemental appendix largely comprised of pro se filings in one of his
criminal cases. Because those filings were not made part of the record before the District
Court on Defendants’ motions to dismiss, Washington needed to file a motion to expand
the record on appeal. He did not. Even if we were to liberally construe Washington’s
reply brief as a hybrid brief and motion to expand, none of the new documents
Washington wishes us to consider would have any bearing on the outcome of this appeal.
                                              7
deprivation process.12 Washington thus failed to state a viable procedural due process

claim, and the District Court, accordingly, did not err in granting Defendants’ motions to

dismiss.

       The judgment of the District Court will be affirmed.13




12
   In addition, Washington had an available cause of action, under Pennsylvania tort law,
to challenge the allegedly unlawful eviction effected by Officer Hoffman at the direction
of Bodor. See Kuriger v. Cramer, 498 A.2d 1331, 1338 (Pa. Super. Ct. 1985); cf. Parratt
v. Taylor, 451 U.S. 527, 539 (1981) (recognizing that “the impracticality of providing
any meaningful predeprivation process, when coupled with the availability of some
meaningful means by which to assess the propriety of the State’s action at some time
after the initial taking, can satisfy the requirements of procedural due process”), overruled
in part on other grounds by Daniels v. Williams, 474 U.S. 327 (1986).
13
  Although the parties’ motions for leave to file supplemental appendices all have been
granted, see Order, CA No. 17-2457 (3d Cir. Mar. 20, 2018) (Officer Hoffman motion);
Order, CA No. 17-2457 (3d Cir. Mar. 29, 2018) (Washington motion); Footnote 3, supra
(Bodor motion), no party is permitted to recover costs for any of those appendices
inasmuch as they were of such limited value to the Court in the disposition of this appeal.
                                             8
