                                                                                                                           Opinions of the United
2007 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


9-25-2007

Harrison v. Miller
Precedential or Non-Precedential: Non-Precedential

Docket No. 07-2296




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"Harrison v. Miller" (2007). 2007 Decisions. Paper 378.
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DLD-373                                                     NOT PRECEDENTIAL

                    UNITED STATES COURT OF APPEALS
                         FOR THE THIRD CIRCUIT
                            ________________

                                  No. 07-2296
                               ________________

                           CLARENCE HARRISON,

                                                Appellant

                                        v.

                  BILL MILLER, Salem County Engineer;
              JOSEPH FEDEMCI, JR., Salem County Engineer;
       CHARLES R. SULLIVAN, Freeholder; LEE R. WARE, Freeholder;
      SUSAN A. BESTWICK, Freeholder; BRUCE L. BOBBITT, Freeholder;
         R. BENJAMIN SIMMERMON, JR.; C. DAVID SPARKS, JR.;
                        BETH E. TIMBERMAN
                ____________________________________

                 On Appeal From the United States District Court
                          For the District of New Jersey
                           (D.C. Civ. No. 05-cv-03552)
                   District Judge: Honorable Noel L. Hillman
                  ____________________________________

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

                               September 7, 2007

          BEFORE: BARRY, AMBRO and FISHER, CIRCUIT JUDGES

                           (Filed: September 25, 2007)
                           _______________________

                                  OPINION
                           _______________________
PER CURIAM

       Appellant, Clarence Harrison, appeals from the District Court’s order granting the

appellees’ motion for summary judgment and the District Court’s denial of Harrison’s

motion to reconsider that dismissal. For the reasons set forth below, we will summarily

affirm the District Court’s order.

       Harrison owns property located in Mannington Township, Salem County, New

Jersey. In July 2005, Harrison commenced an action in the U.S. District Court for the

District of New Jersey against several Salem County employees and freeholders (together,

the “Salem County defendants”), alleging that he sustained injuries while jumping over a

guardrail that the defendants had erected around his property without his consent.

Harrison claimed that the defendants: (1) violated his constitutional rights by erecting the

guardrail; and (2) were liable under New Jersey law for his bodily injuries. He sought ten

million dollars in damages.

       The parties filed cross motions for summary judgment. In May 2006, the District

Court denied both motions in order to give Harrison an opportunity to amend his

complaint. The court explained that unless Harrison could set forth specific allegations as

to how each of the defendants violated the United States and New Jersey Constitutions,

and provide evidence in support of his claims, his complaint would be dismissed. In

response, Harrison did file an amended complaint, but still failed to adequately support

his allegations. As a result, on March 20, 2007, the District Court entered an order



                                             2
granting summary judgment in favor of the Salem County defendants. Harrison

submitted a timely motion for reconsideration, which the District Court denied on

April 19, 2007. The present appeal followed.1

       We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291, and review a

District Court’s grant of summary judgment de novo. Pennsylvania Coal Ass'n v. Babbitt,

63 F.3d 231, 236 (3d Cir. 1995). Summary judgment is proper only if it appears “that

there is no genuine issue as to any material fact and that the moving party is entitled to a

judgment as a matter of law.” Fed. R. Civ. P. 56(c); Carrasca v. Pomeroy, 313 F.3d 828,

832-33 (3d Cir. 2002). If a motion for summary judgment demonstrates that no genuine

issue of material fact exists, the nonmoving party must set forth specific facts showing a

genuine material issue for trial and may not rest upon the mere allegations or denials of its

pleadings. Connors v. Fawn Mining Corp., 30 F.3d 483, 489 (3d Cir. 1994). After a

careful review of the record, we conclude that the appeal presents “no substantial

question” under Third Circuit LAR 27.4 and I.O.P. 10.6 and will, therefore, summarily

affirm the District Court’s order dismissing Harrison’s complaint.




       1
        In his notice of appeal, Harrison seeks review of the District Court’s order
denying his motion for reconsideration, but does not appear to appeal from the preceding
order entering summary judgment against him. Nonetheless, we will review both orders.
See Williams v. Guzzardi, 875 F.2d 46, 49 (3d Cir.1989) (stating that it is proper to
exercise appellate jurisdiction “over orders not specified in the notice of appeal if there is
a connection between the specified and unspecified order, the intention to appeal the
unspecified order is apparent and the opposing party is not prejudiced and has a full
opportunity to brief the issue”).

                                              3
       First, the District Court properly concluded that the Salem County defendants were

entitled to summary judgment on Harrison’s claim that they violated his Fifth and

Fourteenth Amendment rights when they erected the guardrail without his consent. As

the District Court explained, the Fifth Amendment, made applicable to the states through

the Fourteenth Amendment, authorizes the state to take private property for public use if

just compensation is paid to the owner. See United States v. 6.45 Acres of Land, 409

F.3d 139, 145 (3d Cir. 2005). Therefore, in order to make out a Takings Clause claim,

Harrison was required to show, as a threshold matter, that the construction of the

guardrail constituted a “taking” within the meaning of the Fifth Amendment. See id.

Harrison, however, failed to identify any specific facts or provide any affirmative

evidence showing how the guardrail interfered with his property rights. Although

Harrison filed an opposition to the defendants’ motion for summary judgment, the

opposition added nothing new to the conclusory allegations in his pleadings. Therefore,

the District Court correctly concluded that Harrison failed to set forth facts showing a

genuine material issue for trial on his Fifth Amendment claim. See Connors, 30 F.3d at

489.

       Furthermore, to the extent that Harrison’s pleadings can be construed as alleging a

substantive due process claim under 42 U.S.C. § 1983, Harrison failed to allege facts

sufficient to withstand summary judgment on that claim as well. As the Salem County

defendants correctly noted in their motion for summary judgment, only executive action



                                             4
that “shocks the conscience” constitutes a substantive due process violation. See County

of Sacramento v. Lewis, 523 U.S. 833, 845-46 (1998); United Artists Theatre Circuit, Inc.

v. Twp. of Warrington, Pa., 316 F.3d 392, 401 (3d Cir. 2003). The substantive

component of the Due Process Clause can only be violated by governmental employees

when their conduct amounts to an abuse of official power that is “arbitrary in a

constitutional sense.” Collins v. Harker Heights, 503 U.S. 115, 128 (1992). Here,

Harrison failed to show that Salem County’s construction of the guardrail was in any way

improper, let alone arbitrary or conscience shocking. Therefore, the Salem County

defendants were entitled to summary judgment on this claim as well. See Connors, 30

F.3d at 489.

       We also agree with the District Court that the Salem County defendants were

entitled to summary judgment on Harrison’s negligence claim. In his pleadings, Harrison

appears to allege that the Salem County defendants were negligent in erecting or

maintaining the guardrail, and that their negligence caused him to suffer injuries to his leg

and forearm, which ultimately resulted in cancer. Since the guardrail was erected by

employees of a public entity, their liability is governed by New Jersey’s Tort Claims Act,

N.J.S.A. 59:1-1, et seq.2 Harrison, however, failed to set forth specific facts showing that




       2
        The District Court analyzed Harrison’s negligence claim under general negligence
law without reference to the New Jersey Tort Claims Act, N.J.S.A. 59:1-1, et seq. The
District Court’s error is, however, harmless, as Harrison’s claim could not withstand
summary judgment under either analysis.

                                              5
there was a genuine issue for trial on this claim. See N.J.S.A. 59:4-2. Harrison did not

present sufficient evidence to demonstrate that a reasonable jury could find that the

guardrail constituted a dangerous condition, nor did he set forth evidence creating a

genuine issue as to whether he sustained the alleged injuries as a result of the fall. See

Brown v. Brown, 432 A.2d 493, 498 (N.J. 1981). Accordingly, the District Court

correctly concluded that the Salem County defendants were entitled to summary judgment

on Harrison’s negligence claim. See Connors, 30 F.3d at 489.

       Finally, we have reviewed Harrison’s motion for reconsideration and the District

Court’s April 19, 2007 order denying it, and conclude that the District Court did not abuse

its discretion in denying the motion. The District Court correctly concluded that

Harrison’s motion did not present any newly discovered evidence or legal precedent, and

that Harrison failed to demonstrate the need to correct a clear error of law or fact to

prevent manifest injustice. See Max’s Seafood Café v. Quinteros, 176 F.3d 669, 677 (3d

Cir. 1999).

       For the foregoing reasons, we conclude that the District Court properly entered

summary judgment against Harrison. Accordingly, as there is no substantial question

presented by this appeal, we will summarily affirm. See Third Cir. LAR 27.4;

I.O.P. 10.6.




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