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


1-12-2007

Iverson v. Philadelphia
Precedential or Non-Precedential: Non-Precedential

Docket No. 05-3668




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"Iverson v. Philadelphia" (2007). 2007 Decisions. Paper 1773.
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                                                           NOT PRECEDENTIAL


                   UNITED STATES COURT OF APPEALS
                        FOR THE THIRD CIRCUIT

                               _______________

                                 No. 05-3668
                               _______________

                              LEROY IVERSON,

                                       Appellant,

                                       v.

                           CITY OF PHILADELPHIA.

                            ____________________

                On Appeal From the United States District Court
                    for the Eastern District of Pennsylvania
                               (No. 04-cv-02275)
                   District Judge: Honorable John R. Padova

                   Submitted Under Third Circuit LAR 34.1(a)
                              December 14, 2006

         Before: FISHER, CHAGARES and GREENBERG, Circuit Judges.

                            (Filed: January 12, 2007)
                             __________________

                           OPINION OF THE COURT
                             __________________




CHAGARES, Circuit Judge.
       Plaintiff-appellant Leroy Iverson (“Iverson”) appeals the District Court’s Order of

June 28, 2005 granting summary judgment in favor of defendant-appellee the City of

Philadelphia (the “City”), thus dismissing his lawsuit claiming the City violated his rights

under the Fifth and Fourteenth Amendments to the Constitution. For the reasons

expressed below, we will affirm.

                                             I.

       We review the District Court’s order granting summary judgment de novo. Kneipp

v. Tedder, 95 F.3d 1199, 1204 (3d Cir. 1996). We apply the same standard as the District

Court, reviewing the facts in the light most favorable to the non-moving party. Moore v.

City of Philadelphia, 461 F.3d 331, 340 (3d Cir. 2006).

                                             II.

       Because we write solely for the parties, we need not engage in a lengthy recitation

of the legal and factual background.

       The City commenced a civil action against Iverson in April 2002, seeking to force

Iverson to abate an allegedly dangerous structural condition on property owned by

Iverson at 6241 Market Street, Philadelphia (the “property”). After sending numerous

warning letters to Iverson, the City moved before the Philadelphia Court of Common

Pleas for a permanent injunction requiring Iverson to remedy multiple violations of the

Philadelphia Property Maintenance Code by either repairing or demolishing the property.

The Court of Common Pleas held seven hearings over the course of ten months, all but

the last attended by Iverson. At the last hearing, on May 20, 2003, the Court of Common

                                             2
Pleas issued an order (the “Demolition Order”) authorizing the Department of Licenses

and Inspections (or its contractors) to demolish the property.

       Iverson did not move for reconsideration of the Demolition Order, nor did he

appeal it. Instead, on June 20, 2003, exactly thirty days after the entry of the Demolition

Order, Iverson filed a pro se “Motion to Vacate Default Judgment,” though no default

judgment was ever entered against him. Iverson asserts that he mailed a copy of his

motion to the City Solicitor’s office, but the record reflects that he mailed it to the wrong

address. The City claims it was unaware of Iverson’s motion and consequently never

responded to it. Despite the fact that no default judgment had been entered against

Iverson, the Court of Common Pleas entered an order granting Iverson’s motion on July

31, 2003 (the “July 2003 Order”). Iverson did not inform Deputy City Solicitor Ann

Pasquariello, attorney of record in the abatement action, that he had obtained such an

order. Likewise, the City Solicitor was unaware of the entry of the July 2003 Order

vacating the non-existent default judgment.1 In April 2004, the property was demolished.

       On December 30, 2004, Iverson, represented by counsel, filed an Amended




       1
        Iverson argues essentially that because the July 2003 Order was docketed, the
City Solicitor not only had knowledge of it but also was aware that it purported to vacate
the Demolition Order. While we do not decide whether the City Solicitor or the Deputy
City Solicitor was put on notice by virtue of the activity on the docket, we note that “the
Due Process Clause is simply not implicated by a negligent act of an official causing
unintended loss of or injury to life, liberty or property.” Daniels v. Williams, 474 U.S.
327, 328 (1986). See infra Part IV.

                                              3
Complaint2 against the City claiming, pursuant to 42 U.S.C. § 1983, that the City

unlawfully demolished his property in violation of his Fifth and Fourteenth

Amendment rights to procedural due process of law. The City timely filed an Answer

and asserted a counterclaim for breach of implied contract, in which it sought to recover

the costs and expenses associated with the demolition of the property. The District Court

had jurisdiction over the Amended Complaint pursuant to 28 U.S.C. § 1331 and exercised

supplemental jurisdiction over the City’s counterclaim under 28 U.S.C. § 1367.

       At the close of discovery, the City moved for summary judgment. Iverson

opposed the motion. On June 28, 2005, the District Court granted the City’s motion and

entered judgment in favor of the City and against Iverson on all of Iverson’s claims.

Iverson filed a notice of appeal on July 28, 2005.

                                             III.

       The District Court’s June 28, 2005 Order disposing of Iverson’s case did not

address the City’s state law counterclaim. Therefore, the June 28, 2005 Order was not a

final order within the meaning of Federal Rule of Civil Procedure 54(b).3 Subsequent to


       2
        The initial Complaint was filed on May 25, 2004. On October 19, 2004, the
City’s motion to dismiss was granted without prejudice to allow Iverson to correct certain
pleading deficiencies.
       3
           Rule 54(b) provides:

                When more than one claim for relief is presented in an action,
                whether as a claim, counterclaim, cross-claim, or third-party
                claim, or when multiple parties are involved, the court may
                direct the entry of a final judgment as to one or more but

                                              4
the filing of Iverson’s appeal, however, the parties stipulated to a dismissal without

prejudice of the City’s counterclaim. The District Court approved the stipulation which

was filed on November 28, 2005, and closed the case.

       Ordinarily we do not have jurisdiction under 28 U.S.C. § 1291 of an appeal from

an order partially adjudicating a case when a party has asserted a claim in the district

court which it has voluntarily dismissed without prejudice. Erie County Retirees Ass’n v.

County of Erie, Pa., 220 F.3d 193, 201 (3d Cir. 2000). “Given the strong policy against

piecemeal litigation that underlies the finality requirement of § 1291, we have adhered

consistently to the general rule that we lack appellate jurisdiction over partial

adjudications when certain of the claims before the district court have been dismissed

without prejudice.” Fed. Home Loan Mortgage Corp. v. Scottsdale Ins. Co., 316 F.3d

431, 438 (3d Cir. 2003). For this reason, sua sponte, we directed the parties to address


              fewer than all of the claims or parties only upon an express
              determination that there is no just reason for delay and upon
              an express direction for the entry of judgment. In the absence
              of such determination and direction, any order or other form
              of decision, however designated, which adjudicates fewer
              than all the claims or the rights and liabilities of fewer than all
              the parties shall not terminate the action as to any of the
              claims or parties, and the order or other form of decision is
              subject to revision at any time before the entry of judgment
              adjudicating all the claims and the rights and liabilities of all
              the parties.

Fed. R. Civ. P. 54(b).




                                               5
whether this appeal is taken from an order which is final within the meaning of 28 U.S.C.

§ 1291 or which is otherwise appealable at this time. Only Iverson responded that

appellate jurisdiction exists because adjudicating the federal claim in favor of the City

effectively terminated the action in federal court; the City did not accede to our request

for further briefing, perhaps intending to rest on its previous statement that it believed

dismissing its counterclaim without prejudice vests this Court with appellate jurisdiction.

(Br. in Opp. at 3 n.1.).

       We agree. The City can pursue its state law claim against Iverson, but “[can] do so

only in state court, as there would be no basis for the district court to exercise jurisdiction

over such a reinstituted action.” Erie County Retirees, 220 F.3d at 202. “[A] case

dismissed without prejudice that cannot be reinstituted [in federal court] is in the same

position as a case dismissed with prejudice in that both classes of cases have reached

finality.” Morton Int’l Inc. v. A.E. Staley Mfg. Co., 460 F.3d 470, 477 (3d Cir. 2006).

Accordingly, the finality requirement of § 1291 is satisfied, and we have jurisdiction over

this appeal.

                                             IV.

       Turning to the substantive merits, because Iverson has neither alleged nor

demonstrated any action on the part of the federal government with respect to the

demolition of his property, we affirm the District Court’s decision to grant summary

judgment on Iverson’s claim that his Fifth Amendment right to due process was violated.

       As for Iverson’s claim that the City violated his right to procedural due process

                                               6
under the Fourteenth Amendment, the District Court concluded, as a matter of law, that

Iverson failed to establish the necessary elements for municipal liability to attach. We

agree.

         “When a suit against a municipality is based on § 1983, the municipality can only

be liable when the alleged constitutional transgression implements or executes a policy,

regulation or decision officially adopted by the governing body or informally adopted by

custom. Thus, although the municipality may not be held liable for a constitutional tort

under § 1983 on the theory of vicarious liability, it can be held responsible as an entity

when the injury inflicted is permitted under its adopted policy or custom.” Beck v. City

of Pittsburgh, 89 F.3d 966, 971 (3d Cir. 1996) (citing Monell v. New York City Dept. of

Social Servs., 436 U.S. 658, 694 (1978)).

         To withstand summary judgment, Iverson must demonstrate not only the existence

of a policy or custom, but also its connection to his constitutional injury. A government’s

policy is established when a “‘decisionmaker possess[ing] final authority to establish

municipal policy with respect to the action’ issues an official proclamation, policy, or

edict.” Andrews v. City of Philadelphia, 895 F.2d 1469, 1480 (3d Cir.1990) (quoting

Pembaur v. City of Cincinnati, 475 U.S. 469, 481 (1986)). “A course of conduct is

considered to be a ‘custom’ when, though not authorized by law, ‘such practices of state

officials [are] so permanent and well settled’ as to virtually constitute law.” Id. (quoting

Monell, 436 U.S. at 690)).

         We have recognized that “an unconstitutional policy could be inferred from a

                                              7
single decision taken by the highest officials responsible for setting policy in that area of

the government's business.” Brennan v. Norton, 350 F.3d 399, 428 (3d Cir. 2003)

(quoting City of St. Louis v. Praprotnik, 485 U.S.112, 123 (1988)); see also Pembaur, 475

U.S. 469. “To the extent that we have recognized a cause of action under § 1983 based

on a single decision attributable to a municipality, we have done so only where the

evidence that the municipality had acted and that the plaintiff had suffered a deprivation

of federal rights also proved fault and causation.” Board of County Comm’rs of Bryan

County, Okl. v. Brown, 520 U.S. 397, 405 (1997).

       Iverson argues that City Solicitor intentionally ignored a court order which had the

effect of causing the demolition of his property. Iverson avers that “[t]he sole question

before the Court is whether [he] has established scienter-like evidence of deliberate

indifference on the part of a policy maker.” (Br. at 6.) While Iverson has certainly

articulated the framework for analysis, as the District Court correctly recognized, Iverson

has failed in wholesale fashion to support his claim. Iverson does not point to any

evidence, other than his own conclusory statements, demonstrating that the City Solicitor

made the ultimate decision to demolish Iverson’s property. There is nothing in the record

that causally connects the City Solicitor to the demolition of Iverson’s property. In other

words, Iverson has failed to adduce any evidence that the City Solicitor deliberately

ordered the demolition of Iverson’s property in the face of a court order to the contrary.

       Furthermore, although Iverson points to the City Solicitor as being the highest city

official involved in the decision to demolish his property, the City Solicitor does not

                                              8
possess final policymaking authority over whether to demolish a building deemed a

hazardous condition. “The question of who is a ‘policymaker’ is a question of state law.

In looking to state law, a court must determine which official has final, unreviewable

discretion to make a decision or take an action.” Andrews, 895 F.2d at 1481 (citing

Praprotnik, 485 U.S. at 142). Here, the City Solicitor heads the City Law Department,

351 Pa. Code § 3.3-101, and is vested with the power and duty to “furnish legal advice . .

. to all officers, departments, boards and commissioners concerning any matter or thing

arising in connection with the exercise of their official powers or performance of their

official duties”; to “represent the City and every officer, department, board or commission

in all litigation”; and to “take such steps and adopt such means as may be necessary to

enforce . . . [City] ordinances.” 351 Pa. Code § 4.4-400. The City Solicitor’s authority to

advise, to render legal services, and to enforce ordinances does not extend to creating

municipal policy regarding property demolitions, and if the City Solicitor is not the final

policymaker, certainly the Deputy City Solicitor, one of over one hundred attorneys

working in the Law Department, is not.

       Even if the City Solicitor were the final policymaker for the purposes of a § 1983

claim, Iverson’s bald assertion that the City Solicitor intentionally ignored the July 2003

Order which vacated the non-existent default judgment is completely without basis in the

record. Iverson cannot withstand summary judgment by mere reliance on unsupported

assertions, suspicions or conclusory allegations. Ness v. Marshall, 660 F.2d 517, 519 (3d

Cir. 1981). Considering the record in a light most favorable to Iverson, Iverson has failed

                                             9
to demonstrate any genuine issue of fact as to whether the City Solicitor acted with

scienter-like indifference to the July 2003 Order.

                                            V.

       Accordingly, for the foregoing reasons, we will affirm the District Court’s Order

of June 28, 2005 granting summary judgment in favor of the City of Philadelphia.




                                             10
