                                                                                                                           Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


3-19-2008

Mendoza v. Meisel
Precedential or Non-Precedential: Non-Precedential

Docket No. 07-4627




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DLD-132                                      NOT PRECEDENTIAL

                     UNITED STATES COURT OF APPEALS
                          FOR THE THIRD CIRCUIT
                               ___________

                                   No. 07-4627
                                   ___________

                              HIGINIO MENDOZA,
                                             Appellant,

                                        v.

                  WILLIAM MEISEL, Brentwood Police Officer;
                 GERALD MIKELENIS, Brentwood Police Officer

                    ____________________________________

                  On Appeal from the United States District Court
                     for the Western District of Pennsylvania
                            (D.C. Civ. No. 07-cv-00723)
                   District Judge: Honorable David S. Cercone
                   ____________________________________

          Submitted for Possible Dismissal Under 28 U.S.C. § 1915(e)(2)(B)
          or Summary Action Under Third Circuit LAR 27.4 and I.O.P. 10.6
                                  February 22, 2008

    Before:    BARRY, CHAGARES AND GREENBERG, CIRCUIT JUDGES.

                          (Opinion Filed: March 19, 2008)
                                         _________

                                          OPINION
                                         _________

PER CURIAM

       Appellant, Higinio Mendoza, proceeding pro se and in forma pauperis, appeals

from the District Court’s order dismissing his civil rights complaint for failure to state a

claim. For the following reasons, we will dismiss the appeal pursuant to 28 U.S.C. §

1915(e)(2)(B).

       This case arises from several motor vehicle convictions entered against the

Appellant which he alleges were the result of harassment, racial profiling and retaliation

by the Brentwood Police Department. Mendoza filed a complaint seeking damages to

compensate for loss of employment due to the suspension of his driving privileges, in

alleged violation of his equal protection and due process rights pursuant to 42 U.S.C. §

1983. He further requests that his driver’s license be returned to him and that his driving

suspension and traffic citations be overturned. Mendoza also requests a hearing in federal

district court to establish that his due process rights have been abridged as the result of his

convictions for traffic offenses.1 He claims that unidentified court transcripts and audio



   1
     On May 24, 2007, Mendoza was ticketed for “driving while operating privilege is
suspended or revoked” in violation of 75 Pa. C. S. § 1543. At that time he signed an
acknowledgment that his license had been surrendered as a result of a prior suspension.
Appellant apparently has a history of driving while his driver’s license is suspended,
dating back to at least February 5, 1998. See Mendoza v. Larotonda, 2:07cv210, Doc.
No. 1-2 at p.4

                                              2
and visual materials support his view that the series of tickets he received constitute

evidence of racial profiling and that these materials will demonstrate “the pattern/s, or

discrepancies, and inaccuracies that took place.”

       The District Court dismissed Mendoza’s case under 28 U.S.C. § 1915(e)(2)(B)(ii).2

The District Court reasoned that Mendoza is barred from asserting a § 1983 claim until

the convictions on his challenged motor vehicle offenses are set aside or have otherwise

terminated in his favor. See Heck v. Humphrey, 512 U.S. 477, 486 (1994) (§ 1983

damages actions are not appropriate vehicles for challenging the validity of outstanding

criminal judgments that necessarily require the plaintiff to prove the unlawfulness of his

conviction or confinement). Mendoza filed a timely notice of appeal, and we have

jurisdiction pursuant to 28 U.S.C. § 1291. We exercise plenary review over a dismissal

under 28 U.S.C. § 1915(e)(2)(B), see, e.g., Allah v. Seiverling, 229 F.3d 220, 223 (3d Cir.

2000), and conclude that Mendoza’s appeal fails because it is “indisputably meritless.”

Neitzke v. Williams, 490 U.S. 319, 327 (1989).

       We disagree with the District Court that Heck applies to a case such as Mendoza’s.

Heck does not bar a § 1983 claim where the plaintiff is unable to challenge his conditions

of confinement through a petition for federal habeas corpus. Leather v. Eyck, 180 F.3d



   2
     The Court conducted a two-step analysis to determine whether to direct service of
the complaint, because Mendoza sought to proceed in forma pauperis. See Roman v.
Jeffes, 904 F.2d 192, 194 n.1 (3d Cir. 1990). The Court found Mendoza to be without
sufficient funds to pay the required filing fee and granted him leave to proceed in forma
pauperis.

                                              3
420, 424 (2d Cir. 1999). Because Mendoza was never incarcerated, or otherwise in

custody, federal habeas relief has never been available to him and, therefore, Heck cannot

apply. Id. However, we may affirm the District Court on any ground supported by the

record. See Tourscher v. McCullough, 184 F.3d 236, 240 (3d Cir. 1999).

       Mendoza has failed to state a claim that contains even an arguable basis in law for

violations of either the Due Process Clause or the Equal Protection Clause against either

defendant. “[T]o sustain a § 1983 claim based upon a violation of procedural due process

[a plaintiff] must, at a minimum, prove recklessness or ‘gross negligence’ and in some

instance may be required to show a ‘deliberate decision to deprive’ the plaintiff of due

process.” Jordan v. Fox, Rothschild, O’Brien & Frankel, 20 F.3d 1250, 1277 (3d Cir.

1994), citing Daniels v. William, 474 U.S. 327, 333-34 (1986). Mendoza has not alleged

any facts to support an intentional or reckless deprivation of due process. However, even

if he did and the Commonwealth of Pennsylvania had no legal basis for suspending his

license, Mendoza had various remedies that he could have pursued to retrieve his license,

including an application for reinstatement. “[A]n unauthorized intentional deprivation of

property by a state employee does not constitute a violation of the procedural

requirements of the Due Process Clause of the Fourteenth Amendment if a meaningful

postdeprivation remedy for the loss is available.” Hudson v. Palmer, 468 U.S. 517, 533

(1984); see also Bell v. Burson, 402 U.S. 535 (1971) (suspension of a driver’s license

implicates a protectible property interest). Moreover, Mendoza does not claim to have



                                             4
been denied a hearing to challenge the suspension of his license; rather, he alleges that the

loss of his license caused him economic hardship. Such an allegation is not sufficient to

constitute a Due Process violation. The Due Process Clause is satisfied if, “when a State

seeks to terminate an interest such as [an individual’s drivers’ license and registration],” it

affords “‘notice and opportunity for [a] hearing appropriate to the nature of the case’

before the termination becomes effective.” Bell, 402 U.S. at 542. Mendoza does not

allege he was denied such an opportunity.

       Mendoza also fails to allege or provide any evidence that he was treated differently

from other people who are similarly situated, which is necessary to state an equal

protection claim. See City of Cleburne v. Cleburne Living Ctr., Inc., 473 U.S. 432, 439

(1985); Keenan v. City of Phila., 983 F.2d 459, 465 (3d Cir. 1992). Accordingly, his

equal protection claim must also be dismissed.

       Mendoza’s retaliation claim likewise lacks merit. Retaliation for the exercise of

constitutionally protected rights is itself a constitutional violation. White v. Napoleon,

897 F.2d 103, 111-12 (3d Cir. 1990); see also Allah v. Seiverling, 229 F.3d 220, 224-25

(3d Cir. 2000) (“[G]overnment actions, which standing alone do not violate the

Constitution, may nonetheless be constitutional torts if motivated in substantial part by a

desire to punish an individual for exercise of a constitutional right.”). However, Mendoza

has failed to allege facts demonstrating a causal link between his constitutionally

protected conduct of filing a lawsuit, and the traffic citation he received on May 24, 2007.



                                              5
       For the foregoing reasons, we conclude the appeal is meritless and we will dismiss

it pursuant to 28 U.S.C. § 1915(e)(2)(B)(i).




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