                                                                NOT PRECDENTIAL

                        UNITED STATES COURT OF APPEALS
                             FOR THE THIRD CIRCUIT
                                  ____________

                                        No. 12-3802
                                       ____________

                               ROBERT A. DOMBROSKY,
                                                 Appellant

                                             v.

                                     ERIC C. STEWART



                     On Appeal from the United States District Court
                         for the Middle District of Pennsylvania
                                (D. C. No. 3-10-cv-01477)
                      District Judge: Honorable A. Richard Caputo


                       Submitted under Third Circuit LAR 34.1 (a)
                                   on July 18, 2013

                 Before: RENDELL, SMITH and ROTH, Circuit Judges

                                 (Filed: February 12, 2014)


                                       OPINION


ROTH, Circuit Judge:

       Robert A. Dombrosky appeals the District Court’s August 27, 2012, order granting

summary judgment in favor of Eric C. Stewart. For the reasons that follow, we will

affirm the District Court’s order.
I.     Factual Background

       Dombrosky began working as a police officer with the Westfall Township Police

Department on September 30, 1998. On July 16, 2007, Dombrosky was charged with

criminal violations in Port Jervis, New York, that were not related to his job. On

September 6, 2007, Dombrosky and his employer agreed that Dombrosky would take

unpaid leave from his job as a police officer pending the resolution of the charges against

him in Port Jervis.1

       On July 19, 2008, Dombrosky attended a party where he consumed multiple

alcoholic beverages. When Dombrosky attempted to drive himself home that night, his

vehicle swerved off the road and struck a tree.

       Dombrosky called police on his mobile telephone.         Sergeant David Zegarski

arrived on the scene. Zegarski said that Dombrosky was not present. Zegarski and

another officer then went to Dombrosky’s residence but Dombrosky was not there either.

       Zegarski contacted Eric Stewart, the Assistant Chief of Police and on-call

supervisor. Stewart proceeded to Dombrosky’s home. Dombrosky was not home, but

Stewart encountered Dombrosky as Stewart was departing. Dombrosky had walked

approximately five miles home along public streets. Dombrosky invited Stewart into his

home. Stewart stated that Dombrosky appeared intoxicated. Dombrosky denied that he

was intoxicated. Dombrosky and Stewart debated about the circumstances surrounding

1
 Although he was acquitted of the Port Jervis charges, Dombrosky was terminated from
his job as a police officer in Westfall Township. Dombrosky brought suit against the
Westfall Township Police Department and other defendants seeking reinstatement and
back pay in a separate proceeding. An appeal of a District Court order in that case is also
pending before this Court. Dombrosky v. Banach, No. 12-3801 (3d Cir. Oct. 4, 2012).
                                             2
the accident and Dombrosky claimed that another individual, identified as “Chris,” had

been driving. Stewart then left Dombrosky’s residence and interviewed other witnesses.

The witnesses stated that Dombrosky had been intoxicated while at the party and that

Chris could not have been driving because he was still at the party when Dombrosky left.

      Stewart issued three traffic citations and one non-traffic citation to Dombrosky.

Dombrosky was charged with violating (1) 75 Pa. Cons. Stat. Ann. § 3744, duty to give

information and render aid; (2) 75 Pa. Cons. Stat. Ann. § 3745, accidents involving

damage to unattended vehicle or property; (3) 75 Pa. Cons. Stat. Ann. § 3748, giving

false reports; and (4) 18 Pa. Cons. Stat. Ann. § 5505, public drunkenness. Stewart

requested that Police Commission Solicitor Thomas Mincer accompany him to the

hearing against Dombrosky, but the District Attorney’s Office denied the request.

Dombrosky was found not guilty of the public drunkenness charge, but was found guilty

of the three traffic offenses. He appealed the guilty verdicts to the Court of Common

Pleas of Pike County, Pennsylvania. The appeal was denied.

II.   Procedural Background

      On July 16, 2010, Dombrosky brought suit under 42 U.S.C. § 1983 alleging that

Stewart’s selective enforcement of a facially neutral law violated Dombrosky’s rights

under the Equal Protection Clause of the Fourteenth Amendment. Dombrosky’s Second

Amended Complaint, filed April 18, 2012, also alleged a First Amendment retaliation

claim against Stewart.




                                           3
       On August 27, 2012, the District Court granted summary judgment in favor of

Defendant Stewart on both the selective enforcement and First Amendment retaliation

claims.

III.   Discussion2

       “We review the District Court’s grant of summary judgment de novo, applying the

same standard the District Court applied. Summary judgment is appropriate where there

is no genuine issue of material fact to be resolved and the moving party is entitled to

judgment as a matter of law.” Alcoa, Inc. v. United States, 509 F.3d 173, 175 (3d Cir.

2002) (citations omitted).

       A.     The Equal Protection Claim

       Discriminatory enforcement of a facially valid law is unconstitutional under the

Equal Protection Clause of the Constitution. Hill v. City of Scranton, 411 F.3d 118, 125

(3d Cir. 2005). To establish a selective enforcement claim, the plaintiff must demonstrate

(1) that he was treated differently from other similarly situated individuals; and (2) that

this selective treatment was based on an unjustifiable standard, such as race, religion,

some other arbitrary factor or to prevent the exercise of a fundamental right. Dique v.

N.J. State Police, 603 F.3d 181, 184 n.5 (3d Cir. 2010). “Persons are similarly situated

under the Equal Protection Clause when they are alike in ‘all relevant aspects.’” Startzell

v. City of Philadelphia, 533 F.3d 183, 203 (3d Cir. 2008) (quoting Nordlinger v. Hahn,

505 U.S. 1, 10 (1992)).


2
  The District Court had jurisdiction under 28 U.S.C. § 1331 and this Court has
jurisdiction under 28 U.S.C. § 1291.
                                            4
      The District Court found that Dombrosky failed to establish that he was treated

differently from individuals who were like him in all relevant respects. Although he

claimed he was treated differently from “other similarly situated members of the

motoring public,” the District Court found no evidence to support this conclusion. On

appeal, Dombrosky argues that he was treated differently from “all persons who were

drunk in public outside the presence of a police officer” and “all persons who were drunk

when no member of the public was present.”

      This argument is unavailing. Dombrosky has not provided evidence of others

treated differently who were similar to him in “all relevant respects.” See Startzell, 533

F.3d at 203. Therefore, Dombrosky has failed to provide evidence necessary to establish

the required elements of a selective enforcement claim.

      The District Court did not err in granting summary judgment in favor of Stewart.

      B.     The First Amendment Retaliation Claim

      To establish a First Amendment retaliation claim, the plaintiff must prove (1)

constitutionally protected conduct; (2) retaliatory action sufficient to deter a person of

ordinary firmness from exercising his constitutional rights; and (3) a causal link between

the constitutionally protected conduct and the retaliatory action. Thomas v. Independence

Twp., 463 F.3d 285, 296 (3d Cir. 2006). “[T]he key question in determining whether a

cognizable First Amendment claim has been stated is whether ‘the alleged retaliatory

conduct was sufficient to deter a person of ordinary firmness from exercising his First

Amendment rights.’” Id. (quoting McKee v. Hart, 436 F.3d 165, 170 (3d Cir.2006)); see

also Crawford–El v. Britton, 523 U.S. 574, 589 n.10 (1998). The alleged conduct must

                                            5
have more than a de minimis impact on plaintiff’s First Amendment rights. McKee, 436

F.3d at 170.

       The District Court granted summary judgment in favor of Stewart on the claim

because the only retaliatory act alleged by Dombrosky, i.e., Stewart’s request (which was

denied) that Solicitor Mincer accompany him to a hearing against Dombrosky, would not

deter a person of ordinary firmness from exercising his rights under the First

Amendment. As the District Court found, this act would have a de minimis impact, if

any, on a person’s exercise of his or her constitutional rights.3

       On appeal, Dombrosky urges us to treat various other actions by Stewart as

retaliatory conduct. Dombrosky did not argue before the District Court that these actions

constituted retaliatory acts although he had the opportunity to do so. It is well-settled that

“arguments that are asserted for the first time on appeal are deemed to be waived and

consequently are not susceptible to review . . . absent exceptional circumstances.” MD

Mall Assocs., LLC v. CSX Transp., Inc., 715 F.3d 479, 486 (3d Cir. 2013) (internal

citation and quotation marks omitted). Here, we find no exceptional circumstances that

would persuade us to consider Dombrosky’s arguments for the first time on appeal.

IV.    Conclusion

       For the foregoing reasons, we will affirm the District Court’s August 27, 2012,

order granting summary judgment in favor of Defendant Eric Stewart.

3
  The District Court also found that the First Amendment retaliation claim was barred by
the statute of limitations. Because we agree with the District Court that the alleged
retaliatory action taken by Stewart had at most a de minimis impact on Dombrosky’s
exercise of his First Amendment rights, we need not reach the issue of whether the claim
was untimely.
                                              6
