                                                        NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                       No. 19-1061
                                       ___________

                                  JOHN ABERNATHY,
                                             Appellant

                                             v.

           CITY OF PITTSBURGH; STATE OF PENNSYLVANIA;
    MACS TOWING OF HOMESTEAD; BEN SMITH, City of Pittsburgh Attorney
                ____________________________________

                    On Appeal from the United States District Court
                       for the Western District of Pennsylvania
                            (D.C. Civil No. 2-18-cv-00302)
                    Magistrate Judge: Honorable Robert C. Mitchell
                     ____________________________________

                  Submitted Pursuant to Third Circuit LAR 34.1(a)
                               September 17, 2019
        Before: GREENAWAY, JR., RESTREPO and FUENTES, Circuit Judges

                            (Opinion filed: January 10, 2020)
                                     ___________

                                        OPINION *
                                       ___________

PER CURIAM




*
 This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
       Pro se appellant John Abernathy appeals from the District Court’s order granting

summary judgment in favor of the defendants in a civil rights action that Abernathy

brought pursuant to 42 U.S.C. § 1983. For the reasons discussed below, we will affirm.

                                             I.

       Because we write primarily for the parties, we will recite only the facts necessary

for our discussion. In December 2017, the City of Pittsburgh received complaints that

Abernathy’s vehicle, a 2008 Toyota Prius, had been sitting, with a flat tire, for more than

a month on a City street. A police officer visited the scene and determined that the car’s

inspection sticker had expired a year ago and that the registration had expired in June

2017. Thus, the vehicle was presumed abandoned under Pennsylvania law, and the

vehicle was towed by a salvor, Mac’s Towing of Homestead, on January 11, 2018. See

75 Pa. Stat. § 7304.1. The police submitted an abandoned vehicle report to the

Pennsylvania Department of Transportation, which sent a notice to the registered owner

of the vehicle, Mr. Abernathy, on February 10, 2018. Under Pennsylvania law, after

receiving such a letter, the owner may request a hearing “before a civilian officer or

employee of the municipality in which the vehicle was reported as abandoned.” Id.

§ 7305(b). Abernathy received the letter, but he never requested a hearing.

       Instead, Abernathy wrote the City Law Department a letter complaining about the

towing of his vehicle and indicating his intent to sue. Abernathy received a response

from Ben Smith, an attorney with the City Law Department, who told Abernathy that he

had the option of requesting a hearing. Smith said that he usually serves as the hearing

officer, and he informed Abernathy that most challenges are unsuccessful.

                                             2
       In March 2018, Abernathy filed a complaint in the District Court, raising claims

that the defendants violated his procedural due process rights. The defendants filed

motions to dismiss, which the District Court converted into motions for summary

judgment. After providing the parties with notice and an opportunity to respond, the

District Court granted summary judgment to the defendants. This appeal ensued. 1

                                             II.

       We have jurisdiction under 28 U.S.C. § 1291. We exercise plenary review over

the District Court’s order granting summary judgment. See Kaucher v. County of Bucks,

455 F.3d 418, 422 (3d Cir. 2006). Summary judgment is proper when, viewing the

evidence in the light most favorable to the nonmoving party and drawing all inferences in

favor of that party, there is no genuine dispute as to any material fact and the moving

party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a); Kaucher, 455 F.3d

at 422–23. A genuine dispute of material fact exists if the evidence is sufficient for a

reasonable factfinder to return a verdict for the non-moving party. Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 248 (1986). We may affirm on any basis supported by the

record. See Murray v. Bledsoe, 650 F.3d 246, 247 (3d Cir. 2011) (per curiam).

                                            III.

       Abernathy challenges the District Court’s ruling on his due process claims,

arguing that he should have been afforded an opportunity to be heard before his vehicle




1
 On May 7, 2019, we granted the Commonwealth of Pennsylvania’s motion for
Summary Affirmance.
                                             3
was towed and that his available postdeprivation remedy was inadequate. 2 To prevail on

his procedural due process claim, Abernathy was required to show that “(1) he was

deprived of an individual interest that is encompassed within the Fourteenth

Amendment’s protection of life, liberty, or property, and (2) the procedures available to

him did not provide due process of law.” Hill v. Borough of Kutztown, 455 F.3d 225,

234 (3d Cir. 2006) (quotation marks and citation omitted). “A fundamental requirement

of due process is the opportunity to be heard . . . at a meaningful time and in a meaningful

manner.” Elsmere Park Club, L.P. v. Town of Elsmere, 542 F.3d 412, 417 (3d Cir. 2008)

(quotation marks and citation omitted). We have held that “[w]here there is the necessity

of quick action by the State, or where providing any meaningful predeprivation process

would be impractical,” an adequate postdeprivation remedy is sufficient to protect an

individual’s due process rights. Id. A “procedural due process violation cannot have

occurred when the governmental actor provides apparently adequate procedural remedies

and the plaintiff has not availed himself of those remedies.” Id. at 423 (quotation marks

and citations omitted).



2
  Abernathy has not argued that the District Court erred in denying his motion to amend
his complaint or in setting aside the default judgment that was initially entered against
Mac’s Towing. Thus, those issues are waived. See United States v. Pelullo, 399 F.3d
197, 222 (3d Cir. 2005) (“[A]n appellant’s failure to identify or argue an issue in his
opening brief constitutes waiver of that issue on appeal.”). In any event, we have
considered those issues and we conclude that the District Court’s ruling on them was
proper. To the extent that Abernathy’s briefing in this Court raised new claims under the
Fourth Amendment, the Eighth Amendment, and state law, those claims are waived. See
Brenner v. Local 514, United Bhd. of Carpenters & Joiners of Am., 927 F.2d 1283, 1298
(3d Cir. 1991) (generally, the “failure to raise an issue in the district court constitutes a
waiver of the argument”).
                                              4
       Here, because of the apparent “necessity of quick action” and the impracticality of

providing a predeprivation process before towing Abernathy’s vehicle, a predeprivation

hearing was not required. Id. at 417; see also City of Los Angeles v. David, 538 U.S.

715, 719 (2003) (noting that a predeprivation hearing was impractical and not required

prior to city’s towing of vehicle). Abernathy was provided with an adequate

postdeprivation remedy under Pennsylvania law, see 75 Pa. Stat. § 7305(b), including

notice that his vehicle was towed and an opportunity to request a hearing to challenge the

determination that his vehicle was abandoned. 3 Because Abernathy “failed to take

advantage of the available process, [he] has not demonstrated a violation of the Due

Process Clause of the Fourteenth Amendment and thus cannot maintain a successful

§ 1983 action in federal court.” Elsmere, 542 F.3d at 424. Therefore, the District Court

properly granted summary judgment in favor of all the defendants, including the City.

See Mulholland v. Government County of Berks, Pa., 706 F.3d 227, 238 n.15 (3d Cir.

2013) (“It is well-settled that, if there is no violation in the first place, there can be no

derivative municipal claim.”). 4



3
  The mere fact that Ben Smith informed Abernathy that most challenges are
unsuccessful is insufficient for a reasonable factfinder to determine that the City does not
provide a neutral arbiter, let alone that the “process offered was ‘patently inadequate.’”
Elsmere, 542 F.3d at 423 (citation omitted). Nor is there any evidence that a delay in
offering a hearing rendered the process patently inadequate. See David, 538 U.S. at 719
(27-day delay in holding a hearing regarding city’s towing of vehicle was “no more than
a routine delay substantially required by administrative needs”).
4
  As the due process claims are meritless, we need not rule on the Appellees’ alternative
arguments for affirming the District Court’s judgment, such as whether Mac’s Towing
was a proper defendant under § 1983 or whether Mac’s Towing and Ben Smith were
personally involved in the alleged due process violations.
                                                5
Accordingly, we will affirm the judgment of the District Court.




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