BLD-029                                                        NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                       No. 16-2463
                                       ___________

                    THOMAS M. BOLICK, II; EILEEN B. BOLICK,
                                            Appellants
                                             v.
NORTHEAST INDUSTRIAL SERVICES CORPORATION; WILLAM R WILLIAMS;
JEFF KURTZ, Individually and d/b/a Jeffs Recycling; MOUNT CARMEL BOROUGH;
BALLARD SPAHR LLP; DANIEL MCKENNA, Esq.; BALLARD SPAHR ANDREWS
   & INGERSOLL, LLP; DFS SERVICES, LLC, f/k/a Discover Financial Services;
  DISCOVERY BANK OF DELAWARE; NORTHUMBERLAND COUNTY; THE
   NEWS ITEM NORTH ROCK & COMMERCE STS; THE SCRANTON TIMES;
  TRIBUNE; JOHN DOES; JANE DOES 1 through 10; HONORABLE ROBERT B.
   SACAVAGE; EDWARD T. CUFF, Manager; JUDGE CHARLES H. SAYLOR
                  ____________________________________

                     On Appeal from the United States District Court
                         for the Middle District of Pennsylvania
                             (D.C. Civil No. 4:14-cv-00409)
                      District Judge: Honorable Matthew W. Brann
                      ____________________________________
                        Submitted for Possible Summary Action
                   Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6
                                    October 27, 2016

          Before: AMBRO, GREENAWAY, JR. and SCIRICA, Circuit Judges

                           (Opinion filed: November 17, 2016)
                                        _________

                                        OPINION*

*
 This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
                                        _________

PER CURIAM

       Pro se appellants Thomas and Eileen Bolick pursued numerous state and federal

claims in the District Court, eventually settling on a second amended complaint that

raised thirty counts. That complaint cited numerous and disparate alleged factual

predicates for relief, including the demolition of property that the Bolicks owned, a

dispute arising out of their use of a Discover credit card, defamation by news

publications, misconduct of a state-court judge, torts by municipal officials and

employees, and a wide-ranging conspiracy and racketeering enterprise. Six groups of

defendants filed separate motions to dismiss the second amended complaint.

       After the parties briefed those motions, the Magistrate Judge recommended that

the District Court dismiss the complaint on two independent bases. First, the Magistrate

Judge concluded that the second amended complaint did not comply with Federal Rules

of Civil Procedure 8(a)(2) and 8(d)(1). Report and Recommendation, D. Ct. Doc. No.

117 at 8. In particular, the Magistrate Judge stated that the Bolicks failed to “simply,

concisely, and directly allege what their claims are, which facts support those claims, and

which Defendants the claims are asserted against, leaving the Defendants to parse

through the 95-page complaint and 29 pages of attached exhibits and ‘guess what of the

many things discussed constituted [a specific cause of action against them].’” Id. at 9

(quoting Binsack v. Lackawanna Cty. Prison, 438 F. App’x 158, 160 (3d Cir. 2011) (not

precedential)). Second, the Magistrate Judge put forth her best effort to discern the
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nature of each of the Bolicks’ claims, and set forth an independent reason for dismissal of

those claims pursuant to Federal Rule of Civil Procedure 12(b)(6). After the Bolicks

objected to the report and recommendation in multiple filings, the District Court adopted

the Magistrate Judge’s analysis in full, granted the defendants’ motions to dismiss, and

dismissed the Bolicks’ federal claims with prejudice. The District Court also followed

the Magistrate Judge’s recommendation to dismiss the Bolicks’ state law claims without

prejudice to refile them in state court. See 28 U.S.C. § 1367(c)(3).

       Thereafter, the Bolicks timely moved for reconsideration of the District Court’s

dismissal order. The District Court denied the motion for reconsideration on the ground

that the Bolicks sought only to re-litigate the dismissal ruling, and had not put forth any

new evidence or shown that any manifest error of law or fact had occurred.

       This appeal followed. On appeal, certain of the defendants moved for summary

affirmance pursuant to Third Circuit Local Appellate Rule 27.4 and Third Circuit Internal

Operating Procedure 10.6. The Bolicks then filed a response opposing affirmance and in

support of their appeal.

       We have jurisdiction pursuant to 28 U.S.C. § 1291. We exercise plenary review

over a District Court’s decision to grant a Rule 12(b)(6) motion to dismiss, Fleisher v.

Standard Ins. Co., 679 F.3d 116, 120 (3d Cir. 2012), but we review the District Court’s

dismissal of a complaint for failure to comply with the requirements of Rule 8 for an

abuse of discretion, In re Westinghouse Sec. Litig., 90 F.3d 696, 702 (3d Cir. 1996). We

review the District Court’s denial of a motion for reconsideration for an abuse of
                                              3
discretion. Max’s Seafood Café ex rel. Lou-Ann, Inc. v. Quinteros, 176 F.3d 669, 673

(3d Cir. 1999). “[I]n deciding a motion to dismiss, all well-pleaded allegations. . . must

be taken as true and interpreted in the light most favorable to the plaintiffs, and all

inferences must be drawn in favor of them.” McTernan v. City of York, 577 F.3d 521,

526 (3d Cir. 2009) (quotation marks omitted). To withstand a Rule 12(b)(6) motion to

dismiss, a complaint “must contain sufficient factual matter, accepted as true, to ‘state a

claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)

(quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). We construe the

Bolicks’ pro se pleadings liberally, see Haines v. Kerner, 404 U.S. 519, 520 (1972), and

we may affirm the District Court’s judgment on any basis supported by the record, see

Murray v. Bledsoe, 650 F.3d 246, 247 (3d Cir. 2011) (per curiam). Summary action is

appropriate when, as here, the appeal presents no substantial question. 3d Cir. LAR 27.4;

3d Cir. I.O.P. 10.6.

       The Bolicks’ claims here were prolix and vague; they were not “‘simple, concise,

and direct.’” See Westinghouse Sec. Litig., 90 F.3d at 702 (quoting Rule 8(d)(1)). Nor

did the complaint set out “a short and plain statement of [any] claim showing that the

pleader is entitled to relief[.]” Fed. R. Civ. P. 8(a)(2); see also Glover v. FDIC, 698 F.3d

139, 147 (3d Cir. 2012) (A complaint must “‘be presented with clarity sufficient to avoid

requiring a district court or opposing party to forever sift through its pages in search’ of

the nature of the plaintiff’s claim[.]”) (quoting Jennings v. Emry, 910 F.2d 1434, 1436

(7th Cir. 1990)). As a result, the second amended complaint did not provide the
                                              4
defendants with the requisite fair notice of the claims against them. For example, the

complaint is too voluminous and unfocused to be intelligible as to which claims pertain to

which defendants; indeed, the complaint nearly always refers throughout to the

“defendants” as a whole without alleging which defendant or defendants performed

which actions. As another example, the complaint names numerous parties and narrates

various events that have no apparent connection to or among each other. Also, the

complaint consists primarily of a lengthy factual narrative that is unconnected to any

potential claim that the Bolicks wish to bring, combined with vague and conclusory

assertions of liability. The complaint is rife with irrelevant facts that, even if accepted as

true, do not satisfy the elements of any of the causes of action it attempts to raise.

       We will not affirm, however, solely on the basis of the Bolicks’ failure to comply

with the requirements of Rule 8. Rather, we also consider the Magistrate Judge’s attempt

to discern what claims the Bolicks intended to plead and we evaluate whether those

claims were subject to dismissal under Rule 12(b)(6) for the failure to state a claim upon

which relief could be granted. Based on our review of the second amended complaint,

there is no substantial question that the District Court did not err when it granted the

defendants’ motions to dismiss the second amended complaint, substantially for the

reasons set out in the Magistrate Judge’s report and recommendation.

       As an initial point, the Bolicks have sued both a number of private individuals and

entities and also numerous government officials and state entities. As pleaded, the

Bolicks’ complaint fails categorically to state a claim against several of these parties.
                                              5
The Bolicks, who pursued relief under 42 U.S.C. § 1983, were required to plead that the

private individuals’ and entities’ conduct amounted to state action, but they failed to do

so. See Mark v. Borough of Hatboro, 51 F.3d 1137, 1141 (3d Cir. 1995). And when

naming individual government officials or employees, the Bolicks repeatedly failed to set

out those parties’ personal involvement in the alleged violations, as § 1983 requires—

vicarious liability is not enough. See Evancho v. Fisher, 423 F.3d 347, 353 (3d Cir.

2005). Relatedly, for claims brought against municipal entities, the Bolicks were

required to plead that a municipal policy, custom, or practice led to the purported

constitutional violations at issue, but they failed to plead facts sufficient to identify any

such policy, custom, or practice. See Connick v. Thompson, 563 U.S. 51, 60-61 (2011).

Finally, the claims against the judicial defendants for performance of their duties are

barred by absolute judicial immunity. See Azubuko v. Royal, 443 F.3d 302, 303 (3d Cir.

2006) (per curiam).

       An additional problem dooms many of the claims brought against various parties

in this case: the Bolicks have attempted to re-litigate matters that have already been

decided in previous cases. As the Magistrate Judge explained, to the extent that the

Bolicks have sued in federal court to complain of injuries brought about by prior state

court judgments, the District Court had no jurisdiction to hear challenges to those

judgments. See Great W. Mining & Mineral Co. v. Fox Rothschild LLP, 615 F.3d 159,

166 (3d Cir. 2010) (setting out the parameters of the Rooker-Feldman doctrine). The

Magistrate Judge also identified numerous prior cases in which the Bolicks did raise or
                                               6
could have raised several of the claims that they have attempted to bring in this litigation.

The Magistrate Judge was correct to conclude that res judicata bars those claims in this

case. See Migra v. Warren City Sch. Dist. Bd. of Educ., 465 U.S. 75, 81-83 (1984);

Nevada v. United States, 463 U.S. 110, 129-30 (1983) (“res judicata provides that when a

final judgment has been entered on the merits of a case, ‘[i]t is a finality as to the claim or

demand in controversy . . ., not only as to every matter which was offered and received to

sustain or defeat the claim or demand, but as to any other admissible matter which might

have been offered for that purpose’”) (citation omitted).

       To the extent that the above-discussed categorical deficiencies arguably might not

apply, we will comment briefly on the viability of certain of the Bolicks’ claims as

additional grounds for affirmance. First, to the extent that the Bolicks could have raised

claims concerning the demolition of their property against a proper defendant in federal

court, those claims still fail. We agree with the Magistrate Judge that the Bolicks’ claims

related to that demolition are unripe to the extent that they raise constitutional violations

under the Takings Clause of the Fifth Amendment and the Due Process Clause of the

Fourteenth Amendment. See Cowell v. Palmer Twp., 263 F.3d 286, 290 (3d Cir. 2001)

(holding that “‘if a State provides an adequate procedure for seeking just compensation,

the property owner cannot claim a violation of the [Takings] Clause until it has used the

procedure and been denied just compensation.’”) (quoting Williamson Cty. Reg’l

Planning Comm’n v. Hamilton Bank of Johnson City, 473 U.S. 172, 195 (1985)); Taylor

Inv., Ltd., v. Upper Darby Twp., 983 F.2d 1285, 1292-94 (3d Cir. 1993). The Bolicks
                                              7
did not plead facts sufficient to allege their use of procedures as set out in the Eminent

Domain Code of Pennsylvania, so these claims were subject to dismissal as premature.

         Second, to the extent that the Bolicks have argued that any person or entity took

action against them in retaliation for the exercise of their First Amendment rights, that

argument fails. The Bolicks have not pleaded facts to sufficiently allege that any of their

actions were causally connected to the adverse actions that they allegedly endured after

exercising their right to free speech. See Rauser v. Horn, 241 F.3d 330, 333 (3d Cir.

2001).

         Third, the Bolicks’ antitrust claims fail. As the Magistrate Judge explained, 15

U.S.C. § 35(a) bars the antitrust claims as pleaded here against the municipal entities. As

for the antitrust claims against the law firm Ballard Spahr, their representation of their

client Discover Card did not, as pleaded in the Bolicks’ complaint, amount to the kind of

“sham litigation” that the antitrust laws can reach. See Prof’l Real Estate Inv’rs, Inc. v.

Columbia Pictures Indus., Inc., 508 U.S. 49, 51, 56 (1993).

         Fourth, the Bolicks’ attempts to use the federal statutes barring civil conspiracies

and racketeering to maintain their case in federal court all fail. Both the allegations of a

wide-ranging conspiracy and also the allegations of a pattern of racketeering activity

among the defendants are wholly conclusory. No specific fact is alleged that could

establish a conspiracy or a racketeering enterprise. See Iqbal, 556 U.S. at 682.

         For these reasons, there is no substantial question that the Bolicks’ second

amended complaint failed to state a claim upon which relief could be granted. In
                                               8
addition, we agree that providing the Bolicks leave to file a third amended complaint

would have been futile, and the District Court did not abuse its discretion by dismissing

their second amended complaint with prejudice. See Grayson v. Mayview State Hosp.,

293 F.3d 103, 108 (3d Cir. 2002). Furthermore, the Bolicks failed to show that their

motion for reconsideration of the dismissal of their complaint was brought “to correct

manifest errors of law or fact or to present newly discovered evidence.” Harsco Corp. v.

Zlotnicki, 779 F.2d 906, 909 (3d Cir. 1985). It was therefore not an abuse of discretion

for the District Court to deny that motion.

       Consequently, we grant the motion to summarily affirm and will affirm the

District Court’s judgment.




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