CLD-084                                                        NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                       No. 17-2692
                                       ___________

                               WILLIAM M. USCHOCK,
                                             Appellant

                                             v.

                      COMMONWEALTH OF PENNSYLVANIA
                      ____________________________________

                     On Appeal from the United States District Court
                        for the Western District of Pennsylvania
                         (D.C. Civil Action No. 2-17-cv-00516)
                      District Judge: Honorable David S. Cercone
                      ____________________________________

      Submitted for Possible Dismissal Pursuant to 28 U.S.C. § 1915(e)(2)(B) or
         Summary Action Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6
                                December 21, 2017
     Before: CHAGARES, GREENAWAY, Jr., and GREENBERG, Circuit Judges

                           (Opinion filed: February 13, 2018)
                                       _________

                                        OPINION*
                                        _________

PER CURIAM

       William Uschock, proceeding pro se, appeals from the orders of the United States

District Court for the Western District of Pennsylvania dismissing his civil rights


*
 This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
complaint for failure to state a claim, and denying his motion for reconsideration. For the

following reasons, we will summarily affirm.1

       In his complaint, Uschock alleges generally that Pennsylvania’s “Dunham Rule”

infringes on property rights and amounts to a denial of due process of law as required by

the Fifth and Fourteenth amendments. The Dunham Rule is a common law rule of

construction which provides a rebuttable presumption that a reservation of mineral rights

in a conveyance does not include a reservation of rights to natural gas or oil. See

Highland v. Commonwealth, 161 A.2d 390, 398 (Pa. 1960) (citing Dunham & Shortt v.

Kirkpatrick, 101 Pa. 36 (1882)). Uschock contends that the Dunham Rule “blocks

renegotion [sic] of Shale gas ownership” and is, therefore, unconstitutional.

       The District Court, adopting the Magistrate Judge’s Report and Recommendation

(R&R), liberally construed Uschock’s complaint as seeking relief under 42 U.S.C.

§ 1983. To state a claim under § 1983, a plaintiff must allege that a person acting under

color of state law deprived him of rights, privileges, or immunities secured by the

Constitution or laws of the United States. West v. Atkins, 487 U.S. 42, 48 (1988); Parratt

v. Taylor, 451 U.S. 527, 535 (1981), overruled in part on other grounds by Daniels v.

Williams, 474 U.S. 327, 330-31 (1986). The District Court properly concluded that the


1
  We have jurisdiction under 28 U.S.C. § 1291, and exercise plenary review over the
District Court’s sua sponte dismissal for failure to state a claim pursuant to 28 U.S.C. §
1915(e)(2)(ii). See Allah v. Seiverling, 229 F.3d 220, 223 (3d Cir. 2000). We may
summarily affirm if no substantial question is presented on appeal. 3d Cir. LAR 27.4 and
I.O.P. 10.6.

                                             2
sole defendant, the Commonwealth, is not a “person” for purposes of § 1983, and that the

suit is barred by the Eleventh Amendment. See Blanciak v. Allegheny Ludlum Corp., 77

F.3d 690, 697 (3d Cir. 1996) (citing Will v. Mich. Dep’t of State Police, 491 U.S. 58, 64-

66 (1989)).

       We also agree that Uschock’s complaint was otherwise subject to dismissal for

failure to state a claim. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (complaint must

allege specific plausible facts supporting claim and allowing inference that defendant is

liable). To the extent that Uschock has a recognizable property interest2, whether his

claims are analyzed under the Due Process Clause or the Takings Clause, they fail as a

matter of law because he does not allege that his property was taken for public use, or

state how the Dunham Rule -- merely “a rebuttable presumption in the context of a

private deed conveyance” -- works to deprive him of his property without due process.

Butler v. Charles Powers Estate ex rel. Warren, 65 A.3d 885, 897 (Pa. 2013) (reaffirming

the Dunham Rule, noting it has been “an unaltered, unwavering rule of property law for

131 years; indeed its origins actually date back to” 1836); Lingle v. Chevron U.S.A. Inc.,

544 U.S. 528, 543 (2005) (“The [Takings] Clause expressly requires compensation where

government takes private property ‘for public use.’”). And, as the District Court


2
  In his complaint, Uschock challenged the Dunham Rule generally, but did not allege
that he has an interest in any mineral rights affected by it. In his objections to the
Magistrate Judge’s R&R, he states for the first time that the Dunham Rule affects his
right to “open [his] gas lease to [negotiation] for the lease shale gas.” He alleged further
in his motion for reconsideration that “the Uschocks are deprived of the control of the
shale gas estate and monetary values entailed” by the Dunham Rule.
                                               3
explained, the Dunham Rule’s use of the “common, layperson understanding of what is

and is not a mineral” in the construction of a deed, is not violative of substantive due

process, as it is neither conscience shocking, nor arbitrary and capricious. Butler, 65

A.3d at 898; see also County of Sacramento v. Lewis, 523 U.S. 833, 846-47 (1998).

       Uschock’s motion for reconsideration was properly denied because he did not

show an intervening change in the law, new evidence, or the need to correct a clear error

of law. See Max’s Seafood Café v. Quinteros, 176 F.3d 669, 673 (3d Cir. 1999).

       For the foregoing reasons, we will summarily affirm the orders of the District

Court dismissing the complaint and denying the motion for reconsideration.




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