                                                                                                                           Opinions of the United
2002 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


3-25-2002

Mullen v. Thompson
Precedential or Non-Precedential:

Docket 1-3158




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Recommended Citation
"Mullen v. Thompson" (2002). 2002 Decisions. Paper 200.
http://digitalcommons.law.villanova.edu/thirdcircuit_2002/200


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                                 NOT PRECEDENTIAL

               UNITED STATES COURT OF APPEALS
                   FOR THE THIRD CIRCUIT


                        No. 01-3158


  NOEL MULLEN, a minor; MICHAEL MULLEN; NAOMI MULLEN, his
wife, in their own right and as parents and legal guardians
of NOEL MULLEN; RICHARD ALEX, a minor; ROBERT ALEX, a minor;
JEROME ALEX; MARY ANN ALEX, his wife, in their own right and
 as parents and legal guardians of RICHARD ALEX and ROBERT
   ALEX, minors; LARA WALKER, a minor; MICHAEL WALKER, a
minor; LARRY WALKER; JEAN C. WALKER, his wife, in their own
  right and as legal guardians of LARA WALKER and MICHAEL
  WALKER, minors; ASHLEY MAIER, a minor; BRENDA MAIER, an
 adult in her own right and as parent and legal guardian of
 ASHLEY MAIER; ASHLEY LOWREY, a minor; RONALD LOWREY; WENDY
  LOWREY, his wife, in their own rights and as parents and
 legal guardians of ASHLEY LOWREY; CHRISTOPHER TAVORMINA, a
   minor; KIM TAVORMINA, an adult in her own right and as
 parent and legal guardian of CHRISTOPHER TAVORMINA; RONELL
MURRAY, a minor; MICHAEL MURRAY, SR., REVEREND, an adult in
  his own right and as parent and legal guardian of RONELL
                          MURRAY,

                                      Appellants

                            v.

JOHN W. THOMPSON, individually and as Superintendent of the
  City of Pittsburgh School District and Secretary of the
    Board of Directors of the City of Pittsburgh School
District; RICHARD R. FELLERS, individually and as Executive
 Director of Business Affairs; ALEX MATTHEWS, individually
     and as President and member of the Board of Public
 Education; RANDALL TAYLOR, individually and as First Vice
   President and member of the Board of Public Education;
EVELYN B. NEISER, individually and as Second Vice President
    and member of the Board of Public Education; MARK A.
BRENTLEY, SR., individually and as a Member of the Board of
 Education; JEAN FINK, individually and as a Member of the
 Board of Education; DARLENE HARRIS, individually and as a
   Member of the Board of Education; WILLIAM SCOTT ISLER,
  individually and as a Member of the Board of Education;
MAGGIE SCHMIDT, individually and as a Member of the Board of
Education; JEAN E. WOOD, individually and as a Member of the
   Board of Education; THE SCHOOL DISTRICT OF THE CITY OF
                         PITTSBURGH
         On Appeal from the United States District Court
             for the Western District of Pennsylvania
                  (D.C. Civil No. 01-cv-01087)
              District Judge: Hon. Gary L. Lancaster



            Submitted Under Third Circuit LAR 34.1(a)
                          March 7, 2002

           Before: SCIRICA and COWEN, Circuit Judges,
   RESTANI*, Judge, United States Court of International Trade

                      (Filed March 25, 2002)


                         _______________

                             OPINION
                         _______________




*Honorable Jane A. Restani, Judge, United States Court of International
Trade, sitting by
designation.


COWEN, Circuit Judge
     In this case, Plaintiffs appeal from the dismissal of their various
civil rights claims
which arise out of the closing of numerous public schools in the City of
Pittsburgh,
Pennsylvania. Because there is no error in the District Court's
determination that it did
not have subject matter jurisdiction over these claims, we will affirm.
                                I.
     Plaintiffs are nine students enrolled in the Pittsburgh public
schools and their
respective parents. Defendants are John Thompson, the Superintendent of
the School
District of the City of Pittsburgh, and members of the Pittsburgh Board of
Education.
Taking, as we must, the Plaintiffs allegations as true, the essential
facts of this case are as
follows. On November 10, 2000, a local Pittsburgh newspaper published a
story about 24
schools in the school district listed for closing. On November 14, 2000,
the district
officially announced plans to close eighteen schools. On November 30,
2000, the School
Board held a public meeting and allowed the public to address the fiscal
year 2001
budget. Although the meeting was advertised earlier in a newspaper of
general
circulation, the advertisement did not specifically mention the issue of
school closings.
Nonetheless, several of the Plaintiffs and others showed up at the meeting
and voiced
opinions in opposition to the closings. Members of the public were
successful in
preventing the closing of some schools, but Plaintiffs did not have the
same success.
     On December 20, 2000, the School Board cast a 5-4 vote to enact a
budget for
fiscal year 2001. The budget included the closings of eight different
public schools.
Thereafter, Plaintiffs filed the present action to enjoin the School Board
from closing the
schools. Plaintiffs' claims were grounded in the Civil Rights Act of 1871
(42 U.S.C.
1983) and asserted violations of the First Amendment right to petition the
government for
redress of grievances and the 14th Amendment's guarantee of due process of
law.
Defendants moved to dismiss the case pursuant to Federal Rule of Civil
Procedure
12(b)(1) for lack of subject matter jurisdiction. The District Court
agreed with
Defendants and dismissed the case for lack of subject matter jurisdiction,
holding that the
actions of the School Board did not run counter to the federal
Constitution. This appeal
followed.
                               II.
     Plaintiffs contend that the School Board's decision to close the
schools before the
full time provided for in section 7-780 violates the First Amendment's
language
guaranteeing the right to petition the government for redress of
grievances. More
specifically, Plaintiffs assert that public pressure was successful in
preventing the
closings of some schools. Thus, had Plaintiffs had more time to speak
out, they could
have been successful as well.
     We are sympathetic to the assertion that Plaintiffs apparently had
less time than
mandated by state law (under section 7-780) to voice opinions opposing the
closings
before those closings became final. Nevertheless, we are not persuaded
that the alleged
failure to comply with the purely procedural mechanism of section 7-780
rises to the level
of a First Amendment violation. Section 1983 is a critical method for
vindicating the
denial of federally guaranteed rights but that statute may not be invoked
every time local
officials allegedly act contrary to state or local procedural law. In our
view, Plaintiffs'
complaints are more properly left to the Pennsylvania state courts, which
may take
whatever action is permissible under state law to redress the fact that a
state statute was
not complied with by local officials. Indeed, the state courts of
Pennsylvania have
redressed violations of section 7-780 in the past. We express no opinion
on how such
state-level litigation should proceed or what ultimate result should be
reached.
     Plaintiffs also argue that the premature school closing decision
violated their 14th
Amendment due process rights. We are not convinced. The District Court
correctly
analyzed the substance of this issue and properly concluded that
Plaintiffs have no
constitutionally cognizable property or liberty interest in attending the
individual school
of their choice. See Mullen v. Thompson, 155 F. Supp.2d 448, 451-53 (W.D.
Pa. 2001).
While Pennsylvania law clearly guarantees an adequate free public
education generally,
the contours of that right are not nearly as specific as Plaintiffs here
contend. If the
Defendants had denied Plaintiffs access to any free public education, that
would be a
different matter. However, without a constitutionally recognized property
or liberty
interest, there is no need for further inquiry on the due process
question. See, e.g., Paul v.
Davis, 424 U.S. 693, 711-712 (1976).
                               III.
     Even if all facts asserted by Plaintiffs are true, there is no
potential for relief under
the provisions of 42 U.S.C.   1983 since no violations of the federal
Constitution have
occurred. The District Court was correct to grant Defendants' Motion
pursuant to Rule
12(b)(1) and dismiss the cause of action for lack of subject matter
jurisdiction.
     For all of the foregoing reasons, the order of the District Court
entered August 1,
2001 will be affirmed.

TO THE CLERK:
     Please file the foregoing opinion.

                             /s/ Robert E. Cowen
                             United States Circuit Judge
