                                                                 NOT PRECEDENTIAL


                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                ______________

                                       No. 14-3160
                                     ______________

           TYLER HAMMOND; ANTONIA HAMMOND, a/k/a Antonia Camera,
                                 Appellants

                                             v.

 CITY OF WILKES-BARRE; MAYOR THOMAS M. LEIGHTON, Individually and in
   his Official Capacity; WILLIAM E. VINSKO, JR., Individually and in his Official
                   Capacity as City Attorney; LEO A. GLODZIK, III
                                   ______________

            ON APPEAL FROM THE UNITED STATES DISTRICT COURT
                FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
                              (D.C. No. 3-09-cv-02310)
                     District Judge: Hon. Malachy E. Mannion
                                  ______________

                       Submitted Under Third Circuit LAR 34.1(a)
                                    March 5, 2015
                                   ______________

               Before: SHWARTZ, SCIRICA, and ROTH, Circuit Judges.

                             (Opinion Filed: March 26, 2015)
                                    ______________

                                        OPINION
                                     ______________

SHWARTZ, Circuit Judge.


       
        This disposition is not an opinion of the full court and pursuant to I.O.P. 5.7 does
not constitute binding precedent.
       Tyler and Antonia Hammond (the “Hammonds”) sued the City of Wilkes-Barre,

Pennsylvania (the “City”), Mayor Thomas M. Leighton, Assistant City Attorney William

E. Vinsko, Jr., and Leo Glodzik, III (collectively, “Defendants”), alleging that Glodzik

was a state actor and, with the approval of these public officials, destroyed the

Hammonds’ personal property and encroached upon their real property. Because Glodzik

is not a state actor and the record does not show that the public officials were involved in

Glodzik’s actions, the District Court properly granted Defendants’ motion for summary

judgment and we will affirm.

                                              I

       The Hammonds owned a home adjacent to a City-owned property known as the

Old River Road Bakery (the “Bakery Property”). The Hammonds stored personal

property on the Bakery Property, including “garden pruners,” fruit trees, topsoil,

radiators, a bathtub, vegetables, firewood, bricks, and metal fencing. App. 160-62.

       On July 31, 2009, Glodzik signed an Agreement of Sale (the “Agreement”) to

purchase the Bakery Property from the City.1 The Agreement provided that Glodzik

would “take possession of the Property in its ‘as is’ condition as of the date of the

Agreement.” App. 1015. After signing the Agreement,2 Glodzik “started cleaning up the


       1
          Given the unrebutted evidence that the Bakery Property was a single property
entirely owned by the City, the Hammonds failed to raise a genuine issue of material fact
that the Bakery Property sold to Glodzik did not include the land where the Hammonds
stored their personal property.
        2
          The Hammonds contend on appeal that Glodzik may have destroyed their
property before signing the Agreement in July 2009. This argument fails for two reasons.
                                              2
property” and “secur[ing] the area” to maintain insurance coverage. App. 621. To this

end, he removed the Hammonds’ personal property and built a fence. He testified that no

one from the City directed him to remove the Hammonds’ property or was aware that he

might do so.

      The Hammonds were not present when their property was removed. Their friend,

Kevin Dougherty, testified that he recalled seeing Glodzik driving “a bulldozer going

through [the Hammonds’] garden” and that Glodzik “was by himself.” App. 373-74.

Dougherty further testified that, when he confronted Glodzik, Glodzik told him to “[c]all

the mayor, call whoever you want, if there is anything on here, you know, I have a right

to move it.” App. 385. No one saw Leighton on the property, but Darren Stucker, who

lived near the Hammonds, testified that he “saw city vehicles,” Vinsko, and “a code

enforcement guy” for the City near the Bakery Property around the time the Hammonds’

property was removed. App. 313. Stucker surmised that the City allowed Glodzik to

enter the property to clean it up, as the Bakery Property “was chained and locked with

[C]ity locks on it.” App. 319.




First, the Hammonds did not raise this argument before the District Court, and it is
therefore waived. Barefoot Architect, Inc. v. Bunge, 632 F.3d 822, 834-35 (3d Cir.
2011). Second, the argument lacks factual support: no witness definitively testified
Glodzik’s actions predated the Agreement.
                                            3
       In addition to the property destruction, the Hammonds testified that Glodzik

erected a fence that encroaches on their property.3 When Antonia Hammond confronted

Glodzik about the fence, he told her, “Go ahead and call city hall, they’re all my friends,

they’re all my buddies.” App. 172. Antonia Hammond called 911. Although police did

not respond, Vinsko came to the property, tried to calm Hammond down, and told her

that Glodzik did not need a permit to erect the fence.4 Vinsko subsequently sent the

Hammonds a letter assuring them that Glodzik had “always complied with the City’s

Ordinances” and that Vinsko would “monitor this matter to be sure that remains the

case.” App. 286. To this end, Vinsko arranged to send an inspector to investigate

allegations that Glodzik had destroyed property and done “work on the [Bakery Property]

without a permit.” App. 528-29. An inspector found that Glodzik lacked the required

permits and assessed a fine.

       The Hammonds filed a complaint against Glodzik, Leighton, Vinsko, and the City,

seeking relief under § 1983 for alleged violations of their Fourth, Fifth, and Fourteenth

Amendment rights.5 The District Court granted summary judgment in favor of

Defendants under § 1983, reasoning that Glodzik was not a state actor, Leighton and

       3
         Because our analysis turns on whether Glodzik was a state actor and on whether
Leighton or Vinsko was personally involved, whether and to what extent the fence
encroaches is immaterial.
       4
         Vinsko and Leighton testified that they did not know that Glodzik was going to
destroy the Hammonds’ property or erect a fence.
       5
         The Hammonds also brought state common law and statutory claims that were
dismissed. The Hammonds identified the orders dismissing these claims in their notice of
appeal but did not discuss them in their brief and therefore have waived the appeal of
these orders. United States v. Pelullo, 399 F.3d 197, 222 (3d Cir. 2005).
                                             4
Vinsko were not personally involved, and the City could not be held independently liable.

The Hammonds appeal.6

                                             II

                                             A

       We first address the Hammonds’ § 1983 claims against Glodzik.7 Under § 1983, a

plaintiff “must show that the defendants (1) were state actors who (2) violated his rights

under the Constitution or federal law.” Benn v. Universal Health Sys., Inc., 371 F.3d

165, 169-70 (3d Cir. 2004). The question of whether the Hammonds have met the first of

these two requirements “is the same question posed in cases arising under the Fourteenth

Amendment: is the alleged infringement of federal rights fairly attributable to the State?”

Rendell-Baker v. Kohn, 457 U.S. 830, 838 (1982) (internal quotation marks and citation

       6
          The District Court had jurisdiction pursuant to 28 U.S.C. §§ 1331 and 1367.
This Court has appellate jurisdiction under 28 U.S.C. § 1291. We exercise plenary
review of the District Court’s grant of summary judgment, viewing facts and making
reasonable inferences “in the light most favorable to the party opposing the motion.”
Blunt v. Lower Merion Sch. Dist., 767 F.3d 247, 265 (3d Cir. 2014) (internal quotation
marks omitted). “[W]here a non-moving party fails sufficiently to establish the existence
of an essential element of its case on which it bears the burden of proof at trial, there is
not a genuine dispute with respect to a material fact.” Id. Although we give the non-
moving party the benefit of reasonable inferences, “an inference based upon a speculation
or conjecture does not create a material factual dispute sufficient to defeat summary
judgment.” Halsey v. Pfeiffer, 750 F.3d 273, 287 (3d Cir. 2014) (internal quotation
marks omitted).
        7
          The Hammonds argue that Glodzik, who “never filed one opposing paper”
before the District Court, has effectively admitted all material facts as stated by the
Hammonds. Appellant Br. 28-29; see App. 4 n.2. The Federal Rules of Civil Procedure
grant district courts broad latitude to “issue any . . . appropriate order” if a party has
failed to address another party’s assertion of fact at summary judgment. Fed. R. Civ. P.
56(e)(4). In light of the record, we conclude that the District Court acted appropriately
by granting summary judgment in Glodzik’s favor.
                                             5
omitted). In answering this question, “the facts are crucial,” Crissman v. Dover Downs

Entm’t, Inc., 289 F.3d 231, 234 (3d Cir. 2002), and it is “only by sifting facts and

weighing circumstances [that] the nonobvious involvement of the State in private conduct

[can] be attributed its true significance,” Burton v. Wilmington Parking Auth., 365 U.S.

715, 722 (1961). The “central purpose” of this inquiry is “to assure that constitutional

standards are invoked when it can be said that the State is responsible for the specific

conduct of which the plaintiff complains.” Crissman, 289 F.3d at 239 (internal quotation

marks omitted) (emphasis in original). The Supreme Court has deemed private parties to

be state actors in several different circumstances, including where: (1) the private party

has acted with the help of or in concert with state officials, see Lugar v. Edmondson Oil

Co., Inc., 457 U.S. 922, 932-39 (1982); or (2) the state has so far insinuated itself into a

position of interdependence with the acting party that it must be recognized as a joint

participant in the challenged activity, see Burton, 365 U.S. at 724-25.

       The Hammonds contend Glodzik should be treated as a state actor because the

City gave him access to the Bakery Property and because Leighton and Vinsko allowed

Glodzik’s actions. The record, however, shows that Glodzik, as the equitable owner of

the Bakery Property, was acting as a private individual in clearing it. See Bauer v. Hill,

110 A. 346, 347 (Pa. 1920) (“Whenever an unconditional agreement has been made for

the sale of land . . . , it may properly be referred to and treated as sold.”). Even if the City

unlocked the Bakery Property to allow Glodzik access, it did so after Glodzik became the

equitable owner of the property. Thus, the City and Glodzik were acting independently
                                               6
of each other as the seller and buyer of property. Glodzik’s remark that he had “friends”

in “city hall,” App. 172, does not change the analysis. Inferring interdependence with the

state from such bluster would be the type of “inference based upon a speculation or

conjecture” that cannot defeat summary judgment. Halsey, 750 F.3d at 287.

         As to inferences that can be drawn from Leighton’s and Vinsko’s conduct, the

evidence does not show that Vinsko or Leighton knew Glodzik intended to destroy any

property or erect a fence that would encroach on the Hammonds’ property. Even

assuming they had knowledge of and did not prevent these acts, that would be

insufficient to create state action. Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 52

(1999) (“Action taken by private entities with the mere approval or acquiescence of the

State is not state action.”). Moreover, the allegation that they failed to take action is

undermined by the fact that the City fined Glodzik after concluding he did work on the

Bakery Property without a permit. For these reasons, the Hammonds have not shown that

Glodzik is a state actor and the District Court properly granted summary judgment in his

favor.

                                              B

         The District Court also appropriately granted summary judgment in favor of

Leighton and Vinsko. Municipal officials, such as Leighton and Vinsko, may be

personally liable if they “participated in violating the [Hammonds’] rights, directed others

to violate them, or, as the person in charge, had knowledge of and acquiesced in [their]

subordinates’ violations.” Santiago v. Warminster Twp., 629 F.3d 121, 129 (3d Cir.
                                              7
2010) (internal quotation marks omitted).8 The evidence does not show that Leighton or

Vinsko was involved in Glodzik’s conduct. With respect to the destruction of the

Hammonds’ personal property, no one testified that Leighton or Vinsko was present, and

Antonia Hammond’s recollection that someone at city hall assured her “that there were

plans and proposals in place,” App. 236-37, does not support the contention that Leighton

or Vinsko personally caused or acquiesced in Glodzik’s actions. With respect to the

construction of the fence, there is no evidence of Leighton’s involvement. As to Vinsko,

the evidence shows only that he wanted Glodzik’s actions to comply with the City’s

requirements, and the City fined Glodzik when he failed to do so. These actions are the

antithesis of acquiescing in wrongful conduct. Thus, the District Court properly granted

summary judgment in favor of Leighton and Vinsko.

                                              C

       The Hammonds’ claim against the City also fails. Because no City employee

“inflicted . . . constitutional injury,” the City cannot be liable. City of L.A. v. Heller, 475

U.S. 796, 799 (1986). Therefore, the District Court properly granted summary judgment

in favor of the City.

                                              III

       For the foregoing reasons, we will affirm.

       8
         As we noted in Santiago, courts “have expressed uncertainty as to the viability
and scope of supervisory liability after [Ashcroft v. Iqbal, 556 U.S. 662 (2009)].” 629
F.3d at 30 n.8. We need not address whether the scope of supervisory liability has
narrowed, as Defendants are entitled to summary judgment “even under our existing
supervisory liability test.” Id.
                                               8
