ALD-016, ALD-017                                           NOT PRECEDENTIAL

                     UNITED STATES COURT OF APPEALS
                          FOR THE THIRD CIRCUIT
                               ___________

                                   No. 14-1668
                                   ___________

                                MICHAEL DUFFY,

                                                         Appellant

                                         v.

            KENT COUNTY LEVY COURT; P. BROOKS BANTA
                ____________________________________

                   On Appeal from the United States District Court
                             for the District of Delaware
                           (D.C. Civil No. 09-cv-00198)
                    District Judge: Honorable Sue L. Robinson
                    ____________________________________

                    Submitted for Possible Summary Action
               Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6
                                October 23, 2014
                                 ___________

                                   No. 14-1669
                                   ___________

                                MICHAEL DUFFY,

                                                   Appellant

                                         v.

             M. MANGE, CEO; KENT COUNTY DELAWARE;
      P. BROOKS BANTA, also known as Brooke; KENT LEVY COURT Inc.
                       ____________________________________

                     On Appeal from the United States District Court
                               for the District of Delaware
                             (D.C. Civil No. 11-cv-00013)
                      District Judge: Honorable Sue L. Robinson
                      ____________________________________

                        Submitted for Possible Summary Action
                   Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6
                                    October 23, 2014


            Before: RENDELL, CHAGARES and SCIRICA, Circuit Judges

                           (Opinion filed: November 14, 2014)

                                        _________

                                      O P I N I O N1


PER CURIAM

       Michael Duffy appeals pro se from District Court orders entering judgment in

favor of the defendants. For the following reasons, we will grant the Appellees’ motions

to summarily affirm.

       In May 2008, a storm damaged structures on a property in Kent County, Delaware,

that is owned by Duffy. The Division of Inspections and Enforcement of the Kent

County Department of Planning Services deemed several of those structures unsafe and

ordered their demolition if the unsafe conditions were not corrected. After negotiating


1
 This disposition is not an opinion of the full court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
                                             2
for several months with Kent County authorities regarding the rehabilitation or

demolition of the structures, Duffy filed a civil action in the Court of Chancery. While

that lawsuit was ongoing, Duffy was granted a demolition permit but failed to fully raze

the structures. Consequently, after proving Duffy with notice that it intended to proceed

with demolition, Kent County caused the structures to be demolished. Kent County

placed a lien on the property in the amount of $1400, the cost of the demolition.

Thereafter, Duffy initiated several lawsuits, including the two District of Delaware cases

relevant to his present appeals.

       In the first case, Duffy, who claims that he is disabled because of Parkinson’s

Disease, alleged that the Kent County Levy Court (Kent County) and one of its

commissioners, P. Brooks Banta, violated the Americans with Disabilities Act (ADA).

By order entered September 27, 2010, the District Court granted the defendants’ motions

to dismiss Commissioner Banta because the ADA provides for recovery against only a

public entity. Several years later, a Magistrate Judge recommended granting Kent

County’s motion for summary judgment because Duffy failed to “produce sufficient

evidence to create a material issue of fact as to whether he suffers from a disability within

the meaning of the ADA.” The Magistrate Judge also concluded that even if Duffy were

disabled, his ADA claim would fail because he did not demonstrate that he was excluded

from participation in, or denied the benefits of, a public entity’s services, programs, or

activities. By order entered March 10, 2014, the District Court adopted the Magistrate

Judge’s recommendation, granted the motion for summary judgment, and entered
                                              3
judgment in favor of Kent County. Duffy appealed, and the matter was docketed here at

C.A. No. 14-1668.

       In the second case, Duffy alleged that Kent County, Banta, and another

commissioner, Michael J. Petit de Mange, caused a taking of his property without

compensation in violation of the Fifth Amendment, and that the demolition of the

structures resulted in an unlawful seizure under the Fourth Amendment.2 The defendants

filed a motion for summary judgment. The Magistrate Judge recommended granting that

motion because condemnation of the structures was necessary to protect public safety and

because Duffy was given proper notice and adequate recourse to challenge the

demolition. The District Court adopted the Magistrate Judge’s report and

recommendation. Duffy appealed. The matter was docketed here at C.A. No. 14-1669.

       We have jurisdiction under 28 U.S.C. § 1291. “We review district court decisions

regarding both summary judgment and dismissal for failure to state a claim under the

same de novo standard of review.” Barefoot Architect, Inc. v. Bunge, 632 F.3d 822, 826

(3d Cir. 2011). “To survive a motion to dismiss, a complaint must contain sufficient


2
 Duffy also alleged violations of the False Claims Act, federal statutes pertaining to
eminent domain (16 U.S.C. § 814 and 49 U.S.C. § 24311), and Federal Rule of Civil
Procedure 71.1, which governs condemnation proceedings. By order entered May 3,
2011, the District Court dismissed those claims as frivolous under 28 U.S.C.
§ 1915(e)(2)(B) because they “have either been raised in various other complaints here
and in the State Court, or they are related to the other cases [Duffy] has filed.” Duffy
does not designate that judgment as one which he seeks to appeal. See Fed. R. App. P.
3(c)(1). Even if he had, however, we would affirm, for the reasons provided by the
District Court.

                                            4
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) (internal quotations omitted). Summary

judgment is proper where, 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 v. Cnty. of Bucks, 455 F.3d 418, 422-23 (3d Cir.

2006). We may affirm on any basis supported by the record. See Fairview Twp. v. EPA,

773 F.2d 517, 525 n.15 (3d Cir. 1985).

       Duffy alleged that Kent County and Commissioner Banta violated Title II of the

ADA, which provides that “no qualified individual with a disability shall, by reason of

such disability, be excluded from participation in or be denied the benefits of the services,

programs, or activities of a public entity, or be subjected to discrimination by any such

entity.” 42 U.S.C. § 12132. To establish a prima facie case under the ADA, Duffy “must

demonstrate (1) that []he is a qualified individual with a disability; (2) that the defendants

are subject to [the ADA]; and (3) that []he was denied the opportunity to participate in or

benefit from defendants’ services, programs, or activities, or was otherwise discriminated

against by defendants, by reason of [his] disability.” Harris v. Mills, 572 F.3d 66, 73-74

(2d Cir. 2009). In support of his claim, Duffy asserted that Kent County and

Commissioner Banta failed to assist him in correcting the violations on his property and

denied his request for a trash dumpster. The undisputed facts, however, establish that


                                                5
Duffy was neither “excluded from participation” nor “denied . . . benefits” because of his

disability.3

       After receiving notification that structures on his property had been deemed

unsafe, Duffy contacted Kent County, identifying himself as disabled and requesting

assistance in complying with the condemnation order. In response, Kent County met

with Duffy and explained the demolition and rehabilitation process, discussed the

requirements for permits and deadline extensions, and offered to assign a staff member to

assist Duffy. Kent County also provided Duffy several extensions of time in which to

correct the unsafe conditions on his property and granted his request for a demolition

permit. The only adverse action occurred when Kent County rejected Duffy’s request for

a trash dumpster. The Director of the Department of Planning Services for Kent County

explained in an affidavit that, although the County had provided two dumpsters for a

community-organized storm debris clean-up event, it “never provides trash dumpsters at

its expense to private land owners for activities that benefit only one person or parcel of

land.” By contrast, Duffy offered no evidence indicating that the decision to deny a

dumpster was motivated by his disability. See CG v. Pa. Dep’t of Educ., 734 F.3d 229,

236 (3d Cir. 2013) (stating that to satisfy the ADA’s causation requirement, “Plaintiffs

must prove that they were treated differently based on the protected characteristic,

namely the existence of their disability.”). Under these circumstances, we conclude that


3
  In our discussion, we will assume, without deciding, that Duffy was a qualified
individual with a disability under the ADA.
                                              6
the District Court properly granted the motion to dismiss Commissioner Banta and Kent

County’s motion for summary judgment on Duffy’s ADA claims.

       The District Court also properly granted summary judgment in favor of the

defendants on Duffy’s Fourth and Fifth Amendment claims. The Fifth Amendment,

made applicable to state and local governments through the Fourteenth Amendment,

authorizes the taking of private property for public use if just compensation is paid to the

owner. See Cowell v. Palmer Twp., 263 F.3d 286, 290 (3d Cir. 2001). A Takings Clause

claim cannot lie where the plaintiff was not deprived of all beneficial uses of his property.

See Andrus v. Allard, 444 U.S. 51, 65-66 (1979). Assuming that Duffy’s Fifth

Amendment claim was ripe, see Williamson Cnty. Reg’l Planning Comm’n v. Hamilton

Bank, 473 U.S. 172, 186, 195 (1985), we conclude that the defendants’ actions did not

constitute a taking. There is no dispute that Duffy maintained ownership of the property

and that the structures on that property were unsafe. Notably, the destruction of the

unsafe structures was performed pursuant to exercises of traditional police power, “which

do not entitle the individuals affected to compensation.” National Amusements Inc. v.

Borough of Palmyra, 716 F.3d 57, 63 (3d Cir. 2013) (recognizing that the “government

must pay just compensation for . . . takings ‘except to the extent that “background

principles of nuisance and property law” independently restrict the owner’s intended use

of the property.’” (quoting Lingle v. Chevron U.S.A. Inc., 544 U.S. 528, 537 (2005)));

McKenzie v. City of Chicago, 118 F.3d 552, 557 (7th Cir. 1997) (“Razing nuisances, like

killing diseased livestock and burning infected plants, is a time-honored use of a state’s
                                             7
police power”). In addition, Duffy has not shown that the lien on his property

“foreclose[d] all economically viable uses of the land.” Cowell, 263 F.3d at 291 (holding

that imposition of a municipal lien did not constitute a taking).

       Duffy also failed to establish the existence of a genuine issue of material fact

concerning his claim that the defendants violated his rights under the Fourth Amendment.

A “seizure” of property occurs when “there is some meaningful interference with an

individual’s possessory interests in that property.” Soldal v. Cook County, Ill., 506 U.S.

56, 61 (1992). Whether a government seizure violates the Fourth Amendment depends

on its overall reasonableness, which must be based upon a “careful balancing of

governmental and private interests.” Id. at 71 (quoting New Jersey v. T.L.O., 469 U.S.

325, 341 (1985)). Here, the Magistrate Judge properly concluded that the seizure was

reasonable because the structures on Duffy’s property posed a danger to the public,

because the defendants provided Duffy with proper notice of the condemnation and

demolition, and because Duffy was able to challenge the defendants’ actions, including

seeking an injunction in the Court of Chancery. See Freeman v. City of Dallas, 242 F.3d

642, 651 (5th Cir. 2001) (en banc) (holding that warrantless demolition of a nuisance

property was not unreasonable where “the City[] adhere[d] to its ordinances and

procedures as a prelude to ordering the landowners to abate their nuisance structures.”);

Samuels v. Meriwether, 94 F.3d 1163, 1168 (8th Cir. 1996) (concluding that no Fourth

Amendment violation occurred where “the City acted pursuant to a noticed hearing and a


                                              8
resolution effectuating municipal ordinances.”). Therefore, the defendants were entitled

to judgment as a matter of law.

      Accordingly, as these appeals present no substantial question, we will grant the

Appellees’ motions to summarily affirm the judgments of the District Court.4




4
  We have considered Duffy’s letter in support of appeal (filed in C.A. No. 14-1668 on
May 2, 2014), his “Motion of Objections,” which outlines the causes for his appeals
(filed in C.A. Nos. 14-1668 and 14-1669 on May 21, 2014), and his document in support
of appeal (filed in C.A. No. 14-1668 on Oct. 8, 2014). All of Duffy’s outstanding
motions in both appeals are denied.
                                            9
