                                                                                                                           Opinions of the United
2003 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


3-6-2003

Desi Pizza Inc v. Wilkes-Barre
Precedential or Non-Precedential: Precedential

Docket 02-1441




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http://digitalcommons.law.villanova.edu/thirdcircuit_2003/694


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                          PRECEDENTIAL

                                   Filed March 6, 2003

        UNITED STATES COURT OF APPEALS
             FOR THE THIRD CIRCUIT


                     No. 02-1441


                DESI’S PIZZA, INC.;
           DESI’S FAMOUS PIZZA, INC.;
              DESI PIZZA WP, INC.;
            D.F.P. FRANCHISING, INC.;
     FRANCIS DESIDERIO; MARTIN DESIDERIO,
                           Appellants
                          v.
 CITY OF WILKES-BARRE; THOMAS D. McGROARTY;
      ANTHONY J. GEORGE; DAVID W. LUPAS

             ON APPEAL FROM THE
        UNITED STATES DISTRICT COURT
   FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
             (Dist. Court No. 01-cv-00480)
       District Court Judge: Richard A. Caputo

            Argued on December 16, 2002
Before: NYGAARD, ALITO, and RENDELL, Circuit Judges.

            (Opinion Filed: March 6, 2003)
                   HARRY KRESKY (argued)
                   Law Offices of Harry Kresky
                   250 West 57th Street, Suite 2017
                   New York, NY 10107
                   Counsel for Appellants
                               2


                        GEORGE A. REIHNER
                        JOHN G. DEAN (argued)
                        Elliott Reihner Siedzikowski &
                         Egan, P.C.
                        400 Spruce St., Suite 300
                        Scranton, PA 18503
                        Counsel for Appellees
                        City of Wilkes-Barre, Thomas D.
                        McGroarty and Anthony George
                        SEAN P. MCDONOUGH (argued)
                        Dougherty, Leventhal & Price, L.L.P.
                        75 Glenmaura National Blvd.
                        Moosic, PA 18507
                        Counsel for Appellee
                        David W. Lupas


                OPINION OF THE COURT

ALITO, Circuit Judge:
  Desi’s Pizza, Inc., Desi’s Famous Pizza, Inc., Desi’s Pizza
WP, Inc., D.F.P. Franchising, Inc., Francis Desiderio, and
Martin Desiderio (collectively the “plaintiffs”) commenced
this action against the City of Wilkes-Barre, Pennsylvania,
and several city officials. The plaintiffs asserted that the
defendants had violated their constitutional rights to due
process and equal protection and had violated several
federal civil rights statutes. Most but not all of the
challenged actions taken by the defendants concerned a
bar and restaurant known as Desi’s Pizza, which was found
by a state court to be a common nuisance and was closed
down by the state court for a year. The District Court
dismissed the plaintiffs’ complaint under the Rooker-
Feldman doctrine, holding that the plaintiffs’ federal claims
were inextricably intertwined with the state court decision.
We hold that the Rooker-Feldman doctrine does not bar the
plaintiffs’ equal protection claim, their federal statutory
discrimination claims, and their substantive due process
claim. We also conclude that we cannot determine from the
face of the complaint whether the plaintiffs’ procedural due
                              3


process claim is inextricably intertwined with the state
court decision, and we therefore vacate the order
dismissing that claim and remand for the plaintiffs to set
out the claim with sufficient detail to enable the District
Court to determine whether it is inextricably intertwined
with the state court decision.

                              I.
  In reviewing a District Court’s decision to dismiss a
complaint, we assume the truth of the facts alleged in the
plaintiff ’s complaint. Liberty Lincoln-Mercury v. Ford Co.,
134 F.3d 557, 571 n.18 (3d Cir. 1998). Accordingly, we will
summarize the facts alleged in the complaint. Needless to
say, in recounting these allegations, we express no view on
whether they are well-founded.
  Desi’s Pizza, Inc., Desi’s Famous Pizza, Inc., Desi’s Pizza
WP, Inc., and D.F.P. Franchising, Inc. are all corporations
organized under the laws of Pennsylvania, and Francis and
Martin Desiderio are officers, directors, and principals of all
of these corporations. Between some time in 1989 and
March 12, 2001, Desi’s Pizza, Inc. operated Desi’s Pizza
(“Desi’s”) in Wilkes-Barre.
  Between the opening of the Restaurant and March of
2000, the customers patronizing Desi’s were predominantly
white. At some time in March of 2000, the City of Wilkes-
Barre, its mayor (Thomas D. McGroarty) and chief of police
(Anthony J. George), and David W. Lupas, the District
Attorney of Luzerne County, Pennsylvania (collectively the
“defendants”), acted in concert to bring about the closure of
another bar and restaurant called Chu’s. Chu’s clientele
consisted primarily of African-Americans and Latinos. After
Chu’s closed, many of its former patrons became regular
customers of Desi’s.
  The residents of Wilkes-Barre are predominantly white.
Following the closure of Chu’s and the change in the ethnic
composition of Desi’s’ clientele, people living in the area
surrounding Desi’s began to complain to the defendants
about problems allegedly created by Desi’s. Residents
complained that Desi’s’ presence increased “crime, noise[,]
and other disturbances.” App. at 39. These complaints,
                              4


however, were in fact motivated by a desire to drive African-
Americans and Latinos out of Wilkes-Barre, and the
defendants shared this objective. This desire and “public
criticism” of the defendants for failing “to provide adequate
policing and law enforcement” in the city motivated the
defendants to “embark[ ] on a campaign to close down”
Desi’s. Id.
   In furtherance of this campaign, the defendants took
many actions that were adverse to the plaintiffs. These
actions included filing a petition with the Pennsylvania
Liquor Control Board (“Board”) asking the Board to decline
to renew Desi’s’ liquor license; instructing Wilkes-Barre
police officers to “regularly and conspicuously park outside”
Desi’s;    asking     police   officers in  nearby    Dallas,
Pennsylvania, to harass employees and customers of
another restaurant operated by the Desiderios; seeking an
order from a state court closing down Desi’s as a public
nuisance; knowingly making false and disparaging public
statements about the plaintiffs; and “block[ing] efforts” by
the Desiderios to “obtain a permit to open another bar and
restaurant in Wilkes-Barre on spurious grounds.” Id. at 39-
41, 43-45. Although the defendants claimed that their
efforts to close down Desi’s were motivated solely by the
occurrence of criminal activity in and around Desi’s, the
defendants made no negative statements concerning and
took no action against two other bars in Wilkes-Barre
where violent altercations occurred in 2000 and 2001.
  As noted above, the defendants’ actions against Desi’s
included the filing of a complaint in a Pennsylvania state
court seeking an order enjoining the operation of Desi’s on
the ground that it constituted a public nuisance. This state
proceeding is critical to the instant appeal, and we will thus
describe it in some detail.
  On about March 12, 2001, Lupas filed an action in the
Luzerne County Court of Common Pleas (the “state court”)
pursuant to 47 P.S. § 6-611(b), seeking an order enjoining
Desi’s’ operation for one year on the ground that it
constituted a “common nuisance” under 47 P.S. § 6-611(a).
On the same date and without conducting a hearing, the
state court granted a preliminary injunction closing Desi’s.
The state court did not give the plaintiffs the opportunity to
                               5


present testimony concerning the propriety of the
preliminary injunction until a week after the injunction was
issued.
  On March 16, 2001, the plaintiffs filed an answer to
Lupas’s complaint in the state court. On the morning of
March 19, 2001, the plaintiffs filed an amended answer in
the state court and initiated the present action in the
District Court. In pertinent part, the plaintiffs’ amended
answer in the state proceeding stated that they “reserve[d]
the right” to have certain federal claims “adjudicated in the
United States District Court for the Middle District of
Pennsylvania” pursuant to England v. Louisiana State Bd.
of Medical Examiners, 375 U.S. 411 (1964). App. at 108.
Specifically, the plaintiffs reserved the right to file a federal
action asserting claims against the defendants under 42
U.S.C. §§ 1981, 1982, 1983 and 1985, and the Equal
Protection and Due Process Clauses of the Fourteenth
Amendment. The plaintiffs further stated that they did not
wish to have their federal claims adjudicated by the state
court, and that they were describing their federal claims to
the state court only so that the state court could “construe
the state law issues ‘in light of ’ the federal claim [sic] as
required by Government Employees v. Windsor, 353 U.S.
365 (1957).” App. at 108.
   Later in the day on March 19, the state court commenced
hearings on the question whether an order closing Desi’s
was proper. The state court heard testimony concerning
this issue on March 19, 21, and 22, 2001. On March 28,
2001, the state court entered an order enjoining the
operation of Desi’s between the dates of March 12, 2001,
and March 12, 2002. Id. at 77. In an opinion accompanying
its order, the state court made three findings that are
pertinent to this appeal. First, the state court found that
extensive criminal activity had taken place in and around
Desi’s and that there was a “clear, direct and definitive
causal connection between” the operation of Desi’s and
such criminal activity. Id. at 71. Second, the state court
found that Francis Desiderio was aware of this criminal
activity but made little or no attempt to prevent it. Finally,
the state court found that the defendants’ attempt to enjoin
the operation of Desi’s was proper under Pennsylvania law
and made the following comments:
                              6


    For law enforcement officials not to have acted, given
    the number and nature of the complaints [against
    Desi’s], would not only have been an abdication of their
    responsibility to investigate criminal conduct and
    enforce the law, but also an abandonment of the
    citizens whose safety and welfare they are bound to
    protect.
    In conclusion, this Court is firmly of the Opinion that
    the conduct endured by the neighbors of [Desi’s] . . . is
    precisely the type of conduct our legislature intended
    to curb when it authored Section 611 of the Liquor
    Code. In no uncertain terms, [Desi’s] . . . is the
    archetypal nuisance bar. If the conduct and manner of
    operation of [Desi’s] does not qualify as a nuisance bar,
    then that concept is meaningless in Pennsylvania.
Id. at 76-77. The state court made no reference to the
plaintiffs’ federal claims in its opinion. It should be noted
that the state court’s injunction has since expired and that
Desi’s has resumed operation, albeit without a liquor
license.
   The plaintiffs’ complaint in the instant action contains
four counts. First, the complaint avers that the defendants’
act of “singling out [the plaintiffs’] establishments” and
“treating them in a far harsher manner than other
businesses” violated the Equal Protection Clause. App. at
46. Second, the complaint claims that “inasmuch as
defendants[’] actions were done in retaliation for welcoming
African-Americans and Latinos as patrons at their
establishments and were done as part of a custom and
policy designed to drive such persons out of Wilkes-Barre
and the neighboring communities,” the defendants’ actions
violated 42 U.S.C. §§ 1981, 1982, and 1985 and the
Fourteenth Amendment. Id. Third, the complaint maintains
that the defendants violated the plaintiffs’ due process
rights under the Fifth and Fourteenth Amendments. The
complaint alleges that the defendants (a) “perverted and
abused the police powers invested in them for the purpose
of destroying plaintiffs and their businesses without legally
valid justification”; (b) “acted so as to stigmatize and harass
plaintiffs without any lawful basis and without due regard
to the truth of statements made about plaintiffs”; and (c)
                               7


“acted to wrongfully deprive plaintiffs of the use of their
property and the right to pursue legitimate commercial
endeavors.” Id. at 46-47. Finally, the complaint asserts
state-law claims of abuse of process, tortious interference
with business relationships, trade disparagement, and
defamation. The complaint seeks compensatory and
punitive damages and requests an injunction preventing
the defendants from engaging in “further efforts to harass,
disparage and destroy [the plaintiffs’] businesses and
directing [the defendants] to allow Desi’s Pizza to continue
operating.” Id. at 47.
   The defendants moved for partial dismissal of the
complaint under Fed. R. Civ. P. 12(b)(6), and the District
Court responded by dismissing the complaint in its entirety
based on the Rooker-Feldman doctrine (“Rooker-Feldman”).
The Rooker-Feldman doctrine, which derives its name from
the Supreme Court’s decisions in Rooker v. Fidelity Trust
Co., 263 U.S. 413 (1923), and District of Columbia Court of
Appeals v. Feldman, 460 U.S. 462 (1983), “preclude[s] lower
federal court jurisdiction over claims that were actually
litigated or ‘inextricably intertwined’ with adjudication by a
state’s courts.” Parkview Assocs. Pshp. v. City of Leb., 225
F.3d 321, 325 (3d Cir. 2000) (quoting Gulla v. North
Strabane Twp., 146 F.3d 168, 171 (3d Cir. 1998)).
  In an opinion accompanying its order dismissing the
complaint, the District Court stated that each issue raised
by the plaintiffs was “intertwined with the issues in the
state court action.” App. at 11. The District Court held that
dismissal of the first count of the complaint, which alleges
an equal protection violation, was warranted because the
state court, in finding that “Desi’s Pizza was, unequivocally,
a nuisance bar,” had necessarily determined that the
defendants’ “conduct was unrelated to retaliation or [to
Desi’s’] minority clientele.” Id. Similarly, the District Court
dismissed the second count of the complaint on the ground
that “[i]n order to determine that [the defendants] were
retaliating against [the plaintiffs] for serving minorities,” the
District Court “would first have to determine that” the state
court “was incorrect in [its] determination that [the
defendants’] actions were lawful dealings with a nuisance
bar.” Id. at 12.
                               8


   The District Court treated the third count of the plaintiffs’
complaint as alleging violations of the plaintiffs’ Fourteenth
Amendment rights to both procedural and substantive due
process. The District Court held that the Rooker-Feldman
doctrine barred the procedural due process component of
that count for two reasons. First, the District Court
reasoned as follows. In order to be protected by the
guarantee of procedural due process, the plaintiffs had to
have a property right under state law to continue to operate
Desi’s. However, the state court’s determination that the
continued operation of Desi’s was illegal under the state
liquor laws meant that the plaintiffs had no right to
continue to operate Desi’s under Pennsylvania law.
Therefore, the plaintiffs’ procedural due process claim was
inextricably intertwined with the prior state court decision
in the nuisance proceeding. App. at 14.
  Second, the District Court held that “[e]ven accepting
Plaintiffs’ allegations as true, Plaintiffs were given a post-
deprivation hearing and opportunity to be heard.” App. at
13. Presumably, the District Court meant that despite the
fact that the state court initially ordered the closure of
Desi’s without allowing the plaintiffs to present testimony,
the state court held extensive hearings a week later.
  As to the plaintiffs’ substantive due process theory, the
District Court noted the plaintiffs’ contention that
governmental “actions which adversely affect a plaintiff ’s
property interests give rise to a substantive due process
claim if the defendants are motivated by illegitimate
objectives.” App. at 14. The Court reasoned that the state
court had implicitly found that the defendants were not
motivated by illegitimate objectives when the court
determined that “Desi’s Pizza was a nuisance bar.” Id.
  The plaintiffs appealed the District Court’s dismissal of
their complaint. The plaintiffs also filed a motion in the
District Court pursuant to Fed. R. Civ. P. 59(e) requesting
that the District Court reconsider its decision. In their
motion for reconsideration, the plaintiffs informed the
District Court that in the course of the state court
proceedings, they had reserved the right to have their
federal claims adjudicated by the District Court pursuant to
England.
                             9


  The District Court denied the plaintiffs’ motion for
reconsideration on two grounds. First, the District Court
reasoned that a litigant may make an “England reservation”
only where a District Court has previously abstained from
hearing that litigant’s federal claims. Since no District
Court had so abstained, the District Court concluded, no
England reservation was available. Second, the District
Court stated that even if abstention by a federal court is
not a prerequisite to the availability of an England
reservation, a defendant in a state court proceeding “may
invoke England . . . only if the case is removable.” App. at
25. In the present case, the District Court wrote, the state-
court complaint did “not concern a federal question, but
simply the question of whether” Desi’s “constituted a
nuisance,” which was solely a question of Pennsylvania law.
Id. Hence, the District Court concluded, the plaintiffs could
not have removed the state-court action, and their
attempted England reservation was invalid.
  On appeal, the plaintiffs make two contentions. First,
they argue that the District Court erred in holding that the
England reservation was not effective. Since a proper
England reservation protects a federal action from dismissal
under the Rooker-Feldman doctrine, see Ivy Club v.
Edwards, 943 F.2d 270, 284 (3d Cir. 1991), the plaintiffs
maintain that the District Court’s judgment should be
reversed. Second, the plaintiffs claim that even if their
England reservation was ineffective, the District Court erred
in finding that their federal claims were “inextricably
intertwined” with the issues resolved by the state court. As
we explain below, we agree with the plaintiffs’ second
argument and consequently do not reach the question
whether the England reservation was proper.

                             II.
  The Rooker-Feldman doctrine is based on “the well-
settled understanding that the Supreme Court of the
United States, and not the lower federal courts, has
jurisdiction to review a state court decision.” Parkview, 225
F.3d at 324. Under 28 U.S.C. § 1257, the Supreme Court
has jurisdiction to review a decision by “the highest court
of a State in which a decision [may] be had.” Since
                              10


Congress has never conferred a similar power of review on
the United States District Courts, the Supreme Court has
inferred that Congress did not intend to empower District
Courts to review state court decisions. Feldman, 460 U.S.
at 476; Gulla, 146 F.3d at 171. To ensure that Congress’s
intent to prevent “the lower federal courts” from “sit[ting] in
direct review of the decisions of a state tribunal” is given
effect, Gulla, 146 F.3d at 171, the Rooker-Feldman doctrine
prohibits District Courts from adjudicating actions in which
“the relief requested . . . requires determining that the state
court’s decision is wrong or . . . void[ing] the state court’s
ruling.” FOCUS v. Allegheny County Court of Common Pleas,
75 F.3d 834, 840 (3d Cir. 1996).
   As noted above, a claim is barred by Rooker-Feldman
under two circumstances: first, if the claim was “actually
litigated” in state court prior to the filing of the federal
action or, second, if the claim is “inextricably intertwined
with [the] state adjudication,” meaning that “federal relief
can only be predicated upon a conviction that the state
court was wrong.” Parkview, 225 F.3d at 325 (internal
quotation marks omitted). A finding that Rooker-Feldman
bars a litigant’s federal claims divests a District Court of
subject matter jurisdiction over those claims. Guarino v.
Larsen, 11 F.3d 1151, 1156-57 (3d Cir. 1993). Our review
of the District Court’s determination regarding its own
subject matter jurisdiction is plenary. Gulla, 146 F.3d at
171.

                              III.
   The defendants do not claim that the plaintiffs “actually
litigated” their federal claims before the state court for the
purposes of the Rooker-Feldman doctrine. However, we are
required to inquire on our own motion whether the District
Court possessed subject matter jurisdiction over the
present case. Bracken v. Matgouranis, 296 F.3d 160, 162
(3d Cir. 2002) (“[T]his Court has a continuing obligation to
sua sponte raise the issue of subject matter jurisdiction
when it is in question.”); Morel v. INS, 144 F.3d 248, 251
(3d Cir. 1998) (“[A federal] court, including an appellate
court, will raise lack of subject-matter jurisdiction on its
own motion.”) (quoting Insurance Corp. of Ireland, Ltd. v.
                              11


Compagnie des Bauxites de Guinee, 456 U.S. 694, 702
(1982)). Hence, we will briefly discuss the question whether
the plaintiffs “actually litigated” their federal claims in the
state court for Rooker-Feldman purposes.
   Our recent decision in Parkview describes the factors to
be considered in determining whether an issue was
“actually litigated” in a state court proceeding. In Parkview,
the plaintiff applied to a city zoning officer for a permit to
convert a “nursing home and personal care facility” into a
structure functioning solely as a “personal care facility.”
Parkview, 225 F.3d at 322. The zoning officer granted the
requested permit, but residents of the city objected and
appealed to the city’s Zoning Hearing Board. The Board
reversed the zoning officer’s determination, finding that the
plaintiff ’s “proposed use would change the essential
character of the prior use and would increase non-
conformity.” Id. The plaintiff then appealed the Board’s
decision to the Court of Common Pleas of Lebanon County,
Pennsylvania. Under Pennsylvania law, the state court’s
review of the Board’s decision was confined to the question
whether substantial evidence supported the Board’s
determination that the proposed use would “increase non-
conformity.” Id. at 326. The plaintiff did not argue any
issues of federal law in its brief to the state court, and the
state court’s opinion made no statements regarding any
issues of federal law.
   The state court affirmed the Board’s decision, and the
plaintiff subsequently filed an action in federal court
claiming that the city had denied the plaintiff ’s request for
a permit in order to exclude disabled persons from the city
in violation of, inter alia, the Fair Housing Act, the
Americans with Disabilities Act, and the Rehabilitation Act
of 1973. The city claimed that the federal action was barred
by Rooker-Feldman because the proceeding before the state
court amounted to an “actual litigation” of the plaintiff ’s
federal claims. We held, on two grounds, that the plaintiff
had not “actually litigated” its federal statutory claims
before the state court. First, the plaintiff had “not
present[ed] its disability-based discrimination claims to the
state courts on appeal from the Board’s decision[ ].” Id. at
325. Second, the state court’s “opinions reveal[ed] that” the
                              12


court had affirmed the Board’s decision “without deciding
whether [it] . . . violated federal or state anti-discrimination
laws.” Id. at 325-26.
   Applying our holding in Parkview to the present case, we
hold, for two reasons, that the plaintiffs did not actually
litigate their federal claims in the state court proceeding.
First, the plaintiffs made no reference to their federal claims
in the answer they filed in the state court proceeding
beyond the statement that they reserved the right to file
their federal claims in the District Court, and we have
found nothing in the record that suggests that the plaintiffs
made arguments or presented evidence to the state court
concerning the validity of their federal claims. Second, the
state court’s opinion contains no discussion of any issues
of federal law. As noted above, the state court confined its
discussion to the question whether Desi’s constituted a
“common nuisance” under Pennsylvania law. For these
reasons, it is clear that the plaintiffs did not “actually
litigate” their federal claims in the District Court within the
meaning of the Rooker-Feldman doctrine.

                              IV.
   A plaintiff ’s claim for relief in a federal action is
“inextricably intertwined” with an issue adjudicated by a
state court under two circumstances: (1) “when in order to
grant the federal plaintiff the relief sought, the federal court
must determine that the state court judgment was
erroneously entered” and (2) when “the federal court must
. . . take action that would render [the state court’s]
judgment ineffectual.” FOCUS, 75 F.3d at 840.

                              A.
   In the first circumstance discussed above, Rooker-
Feldman bars the plaintiff ’s federal claim because granting
the plaintiff relief would require the federal court to
conclude that the State Court made an incorrect factual or
legal determination. In cases falling into this category,
“federal relief can only be predicated upon a conviction that
the state court was wrong.” Centifanti v. Nix, 865 F.2d
                             13


1422, 1430 (3d Cir. 1989) (quoting Pennzoil Co. v. Texaco,
Inc., 418 U.S. 1, 25 (1987) (Marshall, J., concurring)).
   In determining whether a federal decision favorable to the
plaintiffs would mean that a prior state-court judgment was
wrong, it is necessary to identify the pillars on which the
state-court judgment rests. To do this, we consider the
questions of state law that the state court was obligated to
reach in order to render its decision. Our decision in Ernst
v. Child & Youth Services, 108 F.3d 486 (3d Cir. 1997),
illustrates this process. In that case, a state child welfare
agency filed suit in state court against the grandmother of
a child, seeking to deprive the grandmother of custody and
to have the child placed in foster care. The state court held
that the child was “dependent” under Pennsylvania law,
meaning that the child was “without proper parental care
or control,” and further determined that foster care would
be in “the best interests of the child.” Ernst, 108 F.3d at
492. The grandmother subsequently brought suit against
the child welfare agency in federal court, claiming that the
agency had violated her right to substantive due process by
seeking the termination of her custody out of “malice or
personal bias.” Id. The child welfare agency argued that the
Rooker-Feldman doctrine divested the District Court of
jurisdiction. The agency maintained that, in holding that
the child was “dependent” and in need of foster care, the
state court had necessarily determined that the defendant’s
state court suit was not based on an improper motive.
  We rejected the agency’s Rooker-Feldman argument,
reasoning that under Pennsylvania law “[n]either an
adjudication of dependency nor a determination of the
appropriate disposition of a dependent child is based on the
intentions or states of mind of the party seeking the
dependency      determination.”    Id.    Accordingly,     a
determination that the agency sought to terminate the
grandmother’s custody of the child with an improper motive
would not necessarily imply that the state court had erred
in determining that the child was dependent under
Pennsylvania law. See also Parkview, 225 F.3d at 326
(holding that because Pennsylvania law limited a state
court’s review of a zoning board’s decision to the issue
whether the board’s determinations were supported by
                              14


substantial evidence, the Rooker-Feldman doctrine did not
prevent the plaintiffs from filing a federal action claiming
that the zoning board had engaged in disability
discrimination following a state court’s review of the board’s
determinations); Gulla, 146 F.3d at 172 (holding that a
state court’s determination that the plaintiff landowners
lacked standing to challenge a township’s approval of a
subdivision did not bar the plaintiffs from later asserting
due process, equal protection, and Just Compensation
Clause claims in federal court, because “[u]nder
Pennsylvania law, the [state] court could not resolve the
merits of the Gullas’ [constitutional] claims if they lack
standing to bring their suit”); FOCUS, 75 F.3d at 842
(holding that an order issued by the Pennsylvania Supreme
Court in which it refused to exercise its “King’s Bench”
jurisdiction to overturn gag orders issued by a lower state
court did not implicitly reject the plaintiffs’ claim that the
gag orders violated the First Amendment, as Pennsylvania
law authorized the Pennsylvania Supreme Court to decline
to exercise its King’s Bench jurisdiction where the case did
not present an issue of “immediate public importance”);
Whiteford v. Reed, 155 F.3d 671, 674 (3d Cir. 1992)
(holding that Rooker-Feldman did not bar the plaintiff ’s
federal action where a Pennsylvania state court had
previously dismissed the plaintiff ’s petition for review of an
agency’s decision for failure to comply with the
Pennsylvania Rules of Appellate Procedure, since the extent
of the plaintiff ’s compliance with those rules had no
bearing on the merits of the plaintiff ’s constitutional
claims).

                              B.
  In the second situation discussed above, the plaintiff ’s
federal claim is precluded because the relief sought would
undo or prevent the enforcement of the state court’s order.
For instance, in Stern v. Nix, 840 F.2d 208 (3d Cir. 1988),
the Supreme Court of Pennsylvania had issued an order
revoking the plaintiff ’s license to practice law. The plaintiff
sued the Justices of the Pennsylvania Supreme Court,
seeking a “declaratory judgment and a permanent
injunction restraining the Supreme Court of Pennsylvania
                              15


from disbarring [the plaintiff] and other similarly situated
attorneys unless the Supreme Court . . . first grant[ed] an
evidentiary hearing to the attorney” in question. Stern, 840
F.2d at 212. We held that Rooker-Feldman prevented the
plaintiff from obtaining an injunction against his
disbarment, reasoning that “any attempt to enjoin the
enforcement of a state court judgment . . . is suspect. If
[the proposed injunction were] granted[,] the federal court
would effectively reverse the state court judgment, and thus
‘review [a] final judgment[ ] of a state court in judicial
proceedings,’ contrary to Rooker-Feldman.” Id.; cf.
Centifanti, 865 F.2d at 1429-30 (holding that a plaintiff ’s
suit in federal court, which sought an injunction against
future denials of petitions for readmission to the
Pennsylvania bar without certain procedural safeguards,
was not barred by Rooker-Feldman because it sought only
prospective relief and thus would not prevent the
enforcement of the Pennsylvania Supreme Court’s order
denying the plaintiff ’s petition for readmission). Thus,
Rooker-Feldman does not allow a plaintiff to seek relief that,
if granted, would prevent a state court from enforcing its
orders.

                              V.

                              A.
   Applying the above framework to the instant case, we
turn to the question whether a decision in the plaintiffs’
favor on their federal claims would mean that the judgment
of the state court in the nuisance action was wrong. The
defendants point to the state court’s finding that Desi’s was
a “common nuisance” under Pennsylvania law and the state
court’s statement that the defendants would have
“abdicated” their responsibilities as law enforcement
officials if they had failed to seek the closure of Desi’s. The
defendants argue that affording the plaintiffs relief on their
federal claims would necessarily overturn these aspects of
the state court decision. We disagree.
  First, the defendants’ argument overlooks the fact that
the plaintiffs’ claims are not based solely on the defendants’
                                     16


alleged actions against Desi’s, but encompass alleged
harassment impacting the Desiderios’ other businesses as
well. As noted above, the plaintiffs’ complaint alleges that
the defendants, among other things, instructed police
officers in Dallas, Pennsylvania, to harass the employees
and customers of another establishment operated by the
Desiderios and prevented the Desiderios from opening
another establishment in Wilkes-Barre. App. at 39-44. The
state court findings on which the defendants rely relate
exclusively to Desi’s Pizza. It is therefore apparent that the
plaintiffs’ federal claims, insofar as they relate to the Dallas
restaurant and the second Wilkes-Barre restaurant, are not
inextricably intertwined with the state court’s judgment.
  Second and more important, a decision in the plaintiffs’
favor on their federal equal protection and statutory
discrimination claims would not mean that the state court
erred in finding that Desi’s was a common nuisance or in
commenting about the defendants’ obligation to take action
against Desi’s. This is so because the state court’s finding
that Desi’s was a “common nuisance” under Pennsylvania
law does not mean that a “campaign of harassment”
against that establishment, such as the one allegedly waged
by the defendants, would comport with the Equal
Protection Clause or with 42 U.S.C. §§ 1981 and 1982.1

1. As noted above, the Complaint also requested relief pursuant to 42
U.S.C. §§ 1983 and 1985. We need not independently address the
question whether the plaintiffs have stated a claim under either of the
above provisions, because that inquiry turns on whether the defendants
violated some other federal constitutional or statutory provision. It is well
established that the success of a Section 1983 claim is dependent on the
plaintiff ’s ability to state a cause of action under some other federal
constitutional or statutory provision. See, e.g., Collins v. City of Harker
Heights, 503 U.S. 115, 119 (1992) (“Although [Section 1983] provides the
citizen with an effective remedy against those abuses of state power that
violate federal law, it does not provide a remedy for abuses that do not
violate federal law.”).
  As to the plaintiffs’ 42 U.S.C. § 1985 claim, we assume at the outset
that the plaintiffs are alleging that the defendants’ conduct violated
Section 1985(3). Although the plaintiffs do not specify which subsection
they believe the defendants to have violated, Sections 1985(1) and
1985(2) clearly do not pertain to the present case. Section 1985(1)
                                    17


  As noted above, the state court held that Desi’s
constituted a “common nuisance” under 47 P.S. § 6-611(a).
In pertinent part, that statute reads as follows:
     Any room, house, building, boat, vehicle, structure or
     place . . . where alcohol . . . [is] sold, . . . in violation
     of this act, and all such liquids, beverages and
     property kept or used in maintaining the same, are
     hereby declared to be common nuisances . . . .
47 P.S. § 6-611(a). Thus, in holding that Desi’s was a
“common nuisance” under Pennsylvania law, the state
court necessarily determined that Desi’s was an
establishment where alcohol was sold “in violation of this
act.” An establishment sells alcoholic beverages “in violation
of this act” within the meaning of Section 6-611(a) where
the establishment sells alcohol in violation of one or more
provisions of the Pennsylvania Liquor Code (“Liquor Code”)
or the Pennsylvania Crimes Code (“Crimes Code”).
Commonwealth v. Sal-Mar Amusements, 630 A.2d 1269,
1273 (Pa. Super. 1993) (“We are mindful that a court may
consider violations of the crimes code when deciding
whether the closure of an establishment is proper” under
Section 6-611(a)); Commonwealth v. J-D 201 Corp., 38 Pa.
D. & C.3d 279, 286 (Pa. C. Ct. 1983) (“347 Pa. C.S. § 6-611
expressly provides that the district attorney may . . .
proceed in a civil action to enjoin those who . . . violate the
provisions of the Liquor Code.”). Accordingly, in
determining that Desi’s constituted a “common nuisance,”
the State Court necessarily held that Desi’s had sold
alcoholic beverages in violation of the Liquor Code or the
Crimes Code. The question before us, therefore, is whether

prohibits “two or more persons” from interfering with a federal officer’s
performance of his duties, 42 U.S.C. § 1985(1), and Section 1985(2)
prohibits conspiracies to obstruct justice and to intimidate litigants and
witnesses, 42 U.S.C. § 1985(2). The plaintiffs are not federal officers, and
they do not allege that the defendants obstructed justice or intimidated
them in their capacities as witnesses or litigants. Section 1985(3),
however, prohibits conspiracies to deprive persons of certain
constitutional rights, and is thus the most likely basis for the plaintiffs’
Section 1985(3) claim. 42 U.S.C. § 1985(3); Spencer v. Casavilla, 44 F.3d
74, 77 (2d Cir. 1994).
                              18


a finding that Desi’s violated the Liquor Code or the Crimes
Code necessarily implies that the defendants did not violate
any of the federal laws on which the plaintiffs rely in their
complaint. As we show below with respect to the plaintiffs’
equal protection and statutory discrimination claims, the
state court’s finding carries no such necessary implication.
  We will first treat the plaintiffs’ claims that the
defendants’ alleged campaign of harassment violated the
Equal Protection Clause and 42 U.S.C. §§ 1981 and 1982,
as all of those claims rely on the premise that the
defendants’ actions were undertaken with a racially
discriminatory intent. Second, we will address the plaintiffs’
claim that the defendants’ acts violated the Due Process
Clause of the Fourteenth Amendment.

                              B.
   It is appropriate to discuss the plaintiffs’ Equal Protection
and Section 1981 and 1982 claims together because the
District Court resolved them in an identical fashion. As
noted above, the District Court observed that the plaintiffs’
Equal Protection claim and their claims under 42 U.S.C.
§§ 1981 and 1982 are all predicated on the allegation that
the defendants’ various actions against the plaintiffs were
motivated by a desire to drive African-Americans and
Latinos out of Wilkes-Barre. The District Court dismissed
all of the above claims on the ground that the state court’s
finding that Desi’s constituted a common nuisance and its
comment that the defendants would have abdicated their
responsibilities if they had not attempted to shut down
Desi’s necessarily mean that the defendants did not seek
the closure of Desi’s with discriminatory intent. We cannot
agree.
  As we discussed above, the state court’s finding that
Desi’s was a “common nuisance” means only that Desi’s
operated in violation of the Liquor Code or the Crimes
Code. To adopt the District Court’s position, therefore, we
would be required to endorse the proposition that the
discriminatory enforcement of a state statute cannot
constitute a violation of the Equal Protection Clause or 42
U.S.C. §§ 1981 and 1982 if it is clear that the person
                                   19


against whom the law is enforced actually violated that law.
It is well established, however, that selective prosecution
may constitute illegal discrimination even if the prosecution
is otherwise warranted.2 See, e.g., Wayte v. United States,
470 U.S. 598, 608 (1985) (“[A]lthough prosecutorial
discretion is broad, it is not unfettered. Selectivity in the
enforcement of criminal laws is . . . subject to
constitutional constraints.”) (quoting United States v.
Batchelder, 442 U.S. 114, 125 (1979)); United States v.
Schoolcraft, 879 F.2d 64, 68 (3d Cir. 1989) (“A decision to
prosecute is selective and violates the right to equal
protection when it is made on a discriminatory basis with
an improper motive.”); United States v. Berrigan, 482 F.2d
171, 174 (3d Cir. 1973) (“[A]lthough the government is
permitted ‘the conscious exercise of some selectivity’ in the
enforcement of its criminal laws, any ‘systematic
discrimination’ in enforcement, or ‘unjust and illegal
discrimination between persons in similar circumstances,’
violates the equal protection clause and renders the
prosecution invalid.”) (internal citations omitted). Although
the cases cited above pertain to the Equal Protection
Clause, their reasoning is equally applicable to the
plaintiffs’ statutory discrimination claims. Brown v. Philip
Morris, Inc., 250 F.3d 789, 797 (3d Cir. 2001) (stating that
in order to state a claim under either 42 U.S.C. § 1981 or
42 U.S.C. § 1982, a plaintiff must show that the defendant
acted with discriminatory intent). Thus, without violating
Rooker-Feldman, the plaintiffs’ Equal Protection and Section
1981 and 1982 claims may proceed on the theory that,
although there were numerous establishments in Wilkes-
Barre that clearly constituted common nuisances under
Pennsylvania law, the defendants targeted Desi’s with the
intent to drive certain ethnic groups out of the city.3 App.
at 46.

2. As noted above, the plaintiffs’ complaint proceeds on a theory of
selective prosecution. The complaint specifically alleges that Desi’s was
treated in a “far harsher manner than other businesses similarly
situated.” App. at 46.
3. We stress that we hold only that these claims are not barred by
Rooker-Feldman. We have not considered any other arguments that may
be made regarding these claims.
                                   20


   The defendants stress the state court’s determination
that they would have “abdicat[ed] . . . their responsibility to
investigate criminal conduct and enforce the law” if they
had failed to seek the closure of Desi’s, App. at 76, but we
do not see how this speaks to their motive or why this
statement necessarily means that the defendants did not
discriminate against the plaintiffs. We may assume that
Desi’s’ violations of the Liquor Code and the Crimes Code
were so obvious and flagrant that Wilkes-Barre law
enforcement officials would have been derelict in their
duties if they had failed to shut down Desi’s. The theory of
the plaintiffs’ Equal Protection and statutory discrimination
claims, however, is that other establishments possessing
liquor licenses in Wilkes-Barre had committed equally
serious and obvious violations of the Liquor Code and/or
the Crimes Code, and that the defendants overlooked those
violations because of the ethnic composition of those
establishments’ clientele.4 Hence, it does not follow from the

4. The defendants contend that the complaint did not predicate the
plaintiffs’ Equal Protection claim on the theory that, although Desi’s may
have been a “common nuisance” under Section 6-611(a), the defendants
did not target other establishments that also constituted common
nuisances. Rather, the defendants maintain, the plaintiffs initially
proceeded on the theory that Desi’s was not a common nuisance, but the
defendants treated Desi’s as such with the purpose of driving African-
Americans and Latinos out of Wilkes-Barre. Hence, the defendants
argue, the plaintiffs have waived their right to argue the former theory.
In support of this argument, the defendants point out that the plaintiffs’
complaint states that the “crime, noise and other disturbances” that
occurred in and around Desi’s in 2000 and 2001 were “not unusual for
a restaurant and bar.” App. at 39.
   We disagree with the defendants’ contention. In their complaint, the
plaintiffs alleged that the defendants’ act of “singling out” Desi’s and
“treating [it] in a far harsher manner than other businesses similarly
situated violated plaintiffs’ right to equal protection.” App. at 46. This
statement can be interpreted as alleging that the defendants treated
Desi’s in a harsher manner than other nuisance bars. The plaintiffs’
allegations regarding the commonality of the incidents in and around
Desi’s are not inconsistent with the above statement. It may be the case
that many establishments in Wilkes-Barre constituted “common
nuisances” under Pennsylvania law at all times relevant to the
complaint, but the defendants chose to focus solely on Desi’s.
                                   21


state court’s determination that Desi’s was a flagrant
nuisance that the defendants did not act against the
plaintiffs with improper motives.
   For these reasons, we hold that the plaintiffs’ Equal
Protection and 42 U.S.C. §§ 1981 and 1982 claims are not
“inextricably intertwined” with the state court’s judgment
for the purposes of Rooker-Feldman.

                                   C.
  We next discuss the relationship between the state
court’s determination that Desi’s was a common nuisance
and the plaintiffs’ procedural and substantive due process
claims.5 We find that the complaint does not set out the
procedural due process claim with sufficient particularity to
permit us to decide whether it is barred by Rooker-Feldman.
As to the substantive due process claim, we hold that
dismissal based on Rooker-Feldman was not correct.
   Procedural due process. In order to determine whether
a judgment in the plaintiffs’ favor on their procedural due
process claims would be inconsistent with the state court
judgment, we must know (a) the property interests that
figure in those claims and (b) the procedures that the
plaintiffs claim were due but not provided. The complaint is
far from clear on either of these points, at least with respect
to some claims that the complaint may assert. Before we
decide whether the plaintiffs’ procedural due process claims
are barred by Rooker-Feldman, we believe that the plaintiffs
should be required to spell out those claims. As a result, we
do not decide in this appeal whether Rooker-Feldman
dooms the plaintiffs’ procedural due process claims. See
Rivers v. McLeod, 252 F.3d 99, 102 (2d Cir. 2002) (vacating
a District Court’s order dismissing the plaintiff ’s complaint
based on the Rooker-Feldman doctrine and remanding for

5. Because the District Court interpreted the complaint as asserting both
procedural and substantive due process claims, we proceed on the
assumption that the complaint made both types of due process claim.
The question whether the complaint adequately alleges procedural due
process claims, in addition to substantive due process claims, has not
been briefed before us, and we do not express any view on that issue at
this time.
                               22


clarification of the facts underlying the plaintiff ’s claims for
relief).
   Substantive due process. We next consider the effect of
the Rooker-Feldman doctrine on the plaintiffs’ substantive
due process theory. As noted above, the plaintiffs claim that
the defendants violated substantive due process by
depriving them of the ability to put their property to
productive use. To obtain relief under the substantive
component of the Due Process Clause for a deprivation of
property, a plaintiff must make two showings. First, the
plaintiff must “establish as a threshold matter that he has
a protected property interest to which the Fourteenth
Amendment’s due process protection applies.” Woodwind
Estates, Ltd. v. Gretkowski, 205 F.3d 118, 123 (3d Cir.
2000). While the case law concerning which property
interests are protected “provides very little guidance,”
Homar v. Gilbert, 89 F.3d 1009, 1021 (3d Cir. 1996), one
general principle is clear: “whether a certain property
interest” is constitutionally protected “is not determined by
reference to state law, but rather depends on whether that
interest is ‘fundamental’ under the United States
Constitution.” Nicholas v. Pennsylvania State Univ., 227
F.3d 133, 140 (3d Cir. 2000); see also Dacosta v.
Nwachukwa, 304 F.3d 1045, 1048 (11th Cir. 2002)
(“[S]ubstantive rights ‘created only by state law (as is the
case with tort law and employment law) are not subject to
substantive due process protection . . . because substantive
due process rights are created only by the Constitution.’ ”)
(quoting McKinney v. Pate, 20 F.3d 1550, 1556 (11th Cir.
1994) (en banc)). Second, the plaintiff must show that a
governmental actor’s behavior in depriving him of the
interest in question was “so egregious, so outrageous, that
it may fairly be said to shock the contemporary
conscience.” County of Sacramento v. Lewis, 523 U.S. 833,
847 n.8 (1998).
   We have serious doubts whether the plaintiffs’ allegations
state a substantive due process claim, but that is not the
issue before us. Rather, the issue is whether the Rooker-
Feldman doctrine bars that claim, and we are convinced
that it does not. The District Court concluded that the
plaintiffs’ substantive due process claim was inextricably
                             23


intertwined with the state court decision because the state
court held that the plaintiffs had no right under
Pennsylvania law to operate Desi’s during the year in
question. The District Court reasoned that if it were to hold
that the plaintiffs had been deprived of a property interest
protected by substantive due process, its decision would
necessarily mean that the state court decision regarding the
plaintiffs’ property rights was incorrect. We must disagree
with the District Court on this point because, as noted
above, the presence or absence of property rights under
state law is not dispositive of the question whether a person
has a property interest protected by substantive due
process.
   We reach the same conclusion concerning the question
whether the defendants’ alleged campaign of harassment
against the plaintiffs would “shock the contemporary
conscience.” Again, the state court found only that Desi’s
was a common nuisance under state law and that the
defendants were justified in believing Desi’s to be such. It
does not follow from the state court’s findings that the
defendants’ alleged act of singling out Desi’s for harsher
treatment with the goal of driving African-Americans and
Latinos out of Wilkes-Barre would not shock the
conscience. Accordingly, we hold that the Rooker-Feldman
doctrine does not bar the plaintiffs’ substantive due process
theory.

                             VI.
  The defendants finally argue that since the Rooker-
Feldman doctrine divests federal courts of jurisdiction to
order relief that prevents the enforcement of an order
previously entered by a state court, Rooker-Feldman
precludes the plaintiffs’ attempt to obtain an injunction
against the closure of Desi’s and further harassment by the
defendants. We disagree. The plaintiffs’ request for an
injunction against the closure of Desi’s pursuant to the
state court’s order is moot, as the state court’s injunction
has expired and Desi’s has resumed operations. See, e.g.,
Orion Sales v. Emerson Radio Corp., 148 F.3d 840, 842 (7th
Cir. 1998) (holding that where a District Court’s preliminary
injunction preventing the appellant from terminating its
                              24


agreement with the defendant had expired, the appellant’s
appeal of the District Court’s decision to grant that
injunction was moot); Hodges v. Schlinkert Sports Assocs.,
89 F.3d 310, 312 (6th Cir. 1996) (holding that where a non-
competition clause in a contract had expired by its own
terms, the plaintiff ’s appeal from the District Court’s denial
of the plaintiff ’s request for a preliminary injunction
enforcing the clause was moot). Moreover, Rooker-Feldman
does not apply to the plaintiffs’ request for an injunction
against future harassment, since no state court order
currently governs the plaintiffs’ conduct, and the requested
injunction thus cannot prevent the enforcement of a state
court order. Therefore, the aspect of the Rooker-Feldman
doctrine prohibiting federal courts from granting relief that
overrides relief granted by state courts does not preclude
the plaintiffs’ request for an injunction.

                             VII.
  Defendant Lupas requests that we affirm the judgment in
his favor on the alternative ground that he is entitled to
absolute prosecutorial immunity from suit for the acts that
he allegedly took against the plaintiffs, because he
performed those acts in his capacity as a state prosecutor.
See Imbler v. Pachtman, 424 U.S. 409 (1976). The plaintiffs
respond that Lupas did not raise this defense in the District
Court, and that in any event he is being sued for acts other
than the prosecution of an action in court.
  Absolute immunity is an affirmative defense that should
be asserted in an answer. See Fed. R. Civ. P. 12(b). Here,
the District Court dismissed the plaintiffs’ action on its own
motion before Lupas filed an answer, and therefore Lupas
cannot be faulted for failing to raise the defense in the
District Court. Krohn v. United States, 742 F.2d 24, 29 (2d
Cir. 1984) (“[T]he absolute immunity defense, which on a
motion to dismiss translates to failure to state a claim, is
not a defense which must be raised on the first motion to
dismiss or waived under” Federal Rules of Civil Procedure
“12(g) [and] 12(h)(2).”). Nevertheless, we “generally decline
to address issues that have not been passed upon below
absent exceptional circumstances,” Equibank, N.A. v.
Wheeling-Pittsburgh Steel Corp., 884 F.2d 80, 86 (3d Cir.
                              25


1989), and we see no such exceptional circumstances in
this case. On the contrary, because of the fact-intensive
nature of the inquiry as to whether the particular actions
allegedly taken by Lupas fall within the scope of absolute
prosecutorial immunity, we believe that it is preferable for
that issue to be addressed initially by the District Court.

                             VIII.
  For the reasons explained above, we hold that the
District Court erred in concluding that the plaintiffs’ Equal
Protection claim, their statutory discrimination claims, and
their substantive due process claim are “inextricably
intertwined” with the state court’s order. We therefore
reverse the dismissal of those claims. We are unable at this
juncture to determine whether the same is true of the
plaintiffs’ procedural due process claim, and we therefore
vacate that part of the District Court’s decision and remand
for further proceedings.

A True Copy:
        Teste:

                   Clerk of the United States Court of Appeals
                               for the Third Circuit
