Not Precedential

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT
___________
No. 13-3540
___________
GERHARD SWEETMAN,
Appellant
v.
BOROUGH OF NORRISTOWN, PA; COUNTY OF MONTGOMERY, PA;
STATE OF PENNSYLVANIA; LANDLORD MICHAEL SIMON
____________________________________
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Civil Action No. 2:11-cv-07404 )
District Judge: Honorable Mitchell S. Goldberg
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
January 28, 2014
Before: AMBRO, SHWARTZ and SCIRICA, Circuit Judges
(Opinion filed: January 28, 2014)
___________
OPINION
___________
PER CURIAM
Gerhard Sweetman appeals pro se from the District Courts order granting motions
to dismiss filed in his civil rights case. Sweetman also challenges the District Courts
order denying his motion for reconsideration. We will affirm.
I.
In December 2011, Sweetman filed a pro se civil rights complaint in the District
Court against Pennsylvania (the Commonwealth), Montgomery County, the Borough
of Norristown, and Michael Shimon (Sweetmans landlord). Sweetman appeared to
assert that in December 2009, Norristown code enforcement officers attempted to gain
entry to his apartment for an inspection.1 Sweetman asserted that this attempted entry
violated his Fourth Amendment rights. He also asserted that the officers made terroristic
threats which later caused him to have a heart attack, resulting in his hospitalization.
Montgomery County, Norristown, and the Commonwealth each filed motions to
dismiss. The District Court liberally construed the complaint to assert claims pursuant to
42 U.S.C. 1983 and Monell v. Dep't of Social Servs., 436 U.S. 658, 694 (1978), but it
concluded that Sweetmans complaint contained no viable claim. It concluded that the
complaint failed to identify any Commonwealth or Montgomery County officials who
were involved in the alleged constitutional violation. As to Norristown, the District
Court concluded that Sweetman failed to allege facts that, if true, would establish a
constitutional violation. The District Court also concluded that 1983 would not permit
recovery for an attempted warrantless search.
Sweetman asserts for the first time on appeal that his door was opened during the
attempted entry and that he had to forcibly shut it to prevent the entry of the code
enforcement officers. We do not ordinarily consider allegations raised for the first time
on appeal, and we will not do so here. See Fassett v. Delta Kappa Epsilon, 807 F.2d
1150, 1165 (3d Cir. 1986).
2
With the leave of the District Court, Sweetman filed an amended complaint.
While more detailed, the amended complaint again asserted that the code enforcement
officers violated his Fourth Amendment rights by an attempted apartment invasion and
attempted entry. Sweetman provided few details of the alleged incident, noting only
that it came to the point of almost kicking the door in by Code Enforcement Officers . . .
.2 Sweetman alleged that the attempted entry occurred without his consent and without
a valid search warrant. The Commonwealth, Montgomery County, and Norristown each
filed new motions to dismiss, and the District Court, referencing the reasoning in its prior
order, granted the motions and dismissed the amended complaint.3
Sweetman filed a timely motion for reconsideration which did not address the
District Courts underlying reasoning. Rather, it requested that the District Court
reconsider its ruling due to Sweetmans expectation that pending responses to his
interrogatories would provide iron clad evidence of damages done from the incidents.
After the District Court entered an order denying the motion for reconsideration,
Sweetman timely appealed. In January 2014, Sweetman filed a motion to enjoin the
Federal Housing Authority from discontinuing his public housing voucher.
Sweetman did not provide any other details concerning the attempted entry in his
amended complaint.
3
The District Court also dismissed the claims asserted against Michael Shimon pursuant
to 28 U.S.C. 1915(e)(2)(B)(ii), on the grounds that Sweetman failed to establish a
constitution violation or that Shimon was acting under color of state law. It appears that
Shimon was never served with a copy of the complaint.
3
II.
We first address the scope of our jurisdiction. Sweetmans notice of appeal
referenced only the District Courts denial of reconsideration. However, the order
dismissing Sweetmans motion is clearly connected to the prior order dismissing his
amended complaint, and Sweetmans briefs in support of his appeal, liberally construed,
make clear his intention to appeal the District Courts prior order. Accordingly, we will
construe Sweetmans appeal as an appeal of both orders. See Wiest v. Lynch, 710 F.3d
121, 127 (3d Cir. 2013).
We exercise appellate jurisdiction pursuant to 28 U.S.C. 1291. Our review of a
District Courts order granting a motion to dismiss is plenary. Fowler v. UPMC
Shadyside, 578 F.3d 203, 206 (3d Cir. 2009). In conducting this review, we accept the
truth of Sweetmans factual allegations and draw reasonable inferences in his favor. See
Capogrosso v. Sup. Ct. of N.J., 588 F.3d 180, 184 (3d Cir. 2009) (per curiam). To
survive a 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
review the denial of Sweetmans motion for reconsideration for abuse of discretion. See
Lazaridis v. Wehmer, 591 F.3d 666, 669 (3d Cir. 2010) (per curiam).
III.
The District Court correctly granted the motions to dismiss. As the District Court
concluded, Sweetman failed to allege that any officials from either the Commonwealth or
Montgomery County were involved in any attempted entry of his apartment. See Rode v.
Dellarciprete, 845 F.2d 1195, 1207-08 (3d Cir. 1988). Thus, they were not viable
defendants.4
As to Norristown, the District Court properly concluded that an attempted
violation of Sweetmans Fourth Amendment rights is not remediable under 1983, as no
actual deprivation of his federally protected rights occurred.5 See Collins v. City of
Harker Heights, Tex., 503 U.S. 115, 120 (1992) (Section 1983 provides a remedy
against any person who, under color of state law, deprives another of rights protected by
the Constitution) (citing 42 U.S.C. 1983); cf. Cnty. of Sacramento v. Lewis, 523 U.S.
833, 845 n.7 (1998) (attempted seizures of person are beyond the scope of the Fourth
Amendment); United States v. Valentine, 232 F.3d 350, 358 (3d Cir. 2000) ([I]f the
police make a show of authority and the suspect does not submit, there is no seizure.); see
also, e.g., Andree v. Ashland Cnty., 818 F.2d 1306, 1311 (7th Cir. 1987) ([T]he mere
We note that municipal code enforcement is administered by each municipality and not
by the Commonwealth or county officials. See 35 Pa. Stat. Ann. 7210.501; Com. v.
Daugherty, 829 A.2d 1273, 1277 (Pa. Commw. Ct. 2003).
5
Sweetman asserted that the attempted entry into his apartment caused him to suffer a
heart attack several weeks after the incident. Setting aside the question of whether an
attempted entry is cognizable under 1983, Sweetman has not plausibly alleged that the
heart attack was a result of the interaction. See Iqbal, 556 U.S. at 678; Twombly, 550
U.S. at 570.
5
attempt to deprive a person of his [constitutional] rights is not, under usual

circumstances, actionable under section 1983) (emphasis in the original). It may be that
Sweetman thinks that the Norristown officials should be liable because they planned,
wanted, or conspired to deprive him of his Fourth Amendment rights. If so, 1983 does
not provide a remedy. A 1983 conspiracy claim is viable only if there has been an
actual deprivation of a constitutional right. Andree v. Ashland Cnty., 818 F.2d 1306,
1311 (7th Cir. 1987); see also Dixon v. City of Lawton, 898 F.2d 1443, 1449 (10th Cir.
1990). Accordingly, as Sweetman did not submit to the inspection of his home and thus
was not deprived of his Fourth Amendment right to be free of unreasonable searches, cf.
Lewis, 523 U.S. at 845 n.7(1998); Valentine, 232 F.3d at 358, he did not assert a
remediable 1983 conspiracy claim. See Andree, 818 F.2d at 1311.
Sweetman also asserted that he was threatened during the attempted entry. While
he does not specify the exact nature of the threats, mere verbal threats do not provide the
basis for a viable 1983 claim. See Hopson v. Fredericksen, 961 F.2d 1374, 1378 (8th
Cir. 1992). Sweetman also asserted the existence of a municipal policy that authorized
code enforcement agents to attempt to enter his premises. However, as Sweetman has
failed to state a claim pursuant to 1983, he also failed to state a Monell claim. See
Monell, 436 U.S. at 694 (1978).
Finally, in seeking reconsideration, Sweetman implied that the District Court
should have waited to dismiss his complaint until he had received responses to his
interrogatories. However, it was not error for the District Court to dismiss Sweetmans
6
complaint under Rule 12(b)(6) when it did. See, e.g., McLean v. United States, 566 F.3d
391, 399 (4th Cir. 2009) (noting that a purpose of Rule 12(b)(6) is dispensing with
needless discovery).
For these reasons, and in light of our overall examination of the record, we will
affirm the judgment of the District Court. Sweetmans motion for an injunction is
denied.6
Sweetman seeks an injunction against the Federal Housing Authority to prevent the loss
of his housing voucher. However, any claims Sweetman seeks to raise against nonparties to the instant action must be first raised in the District Court.
7

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UNITED STATES COURT OF APPEALS

attempt to deprive a person of his [constitutional] rights is not, under usual

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