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Title Desi's Pizza, Inc. v. City of Wilkes-Barre

Date 2003

By Alito

Subject Misc

Contents

Page 1

LEXSEE 321 F3D 411

DESI'S PIZZA, INC.; DESI'S FAMOUS PIZZA, INC.; DESI PIZZA WP, INC.; D.F.P. FRANCHISING, INC.; FRANCIS DESIDERIO; MARTIN DESIDERIO, Appellants v. CITY OF WILKES-BARRE; THOMAS D. McGROARTY; ANTHONY J. GEORGE; DAVID W. LUPAS

No. 02-1441

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

321 F.3d 411; 2003 U.S. App. LEXIS 4151

December 16, 2002, Argued

March 6, 2003, Filed

SUBSEQUENT HISTORY: **1 As Amended March

10, 2003.

PRIOR HISTORY: ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA. (Dist. Court No. 01- cv-00480). District Court Judge: Richard A. Caputo.

DISPOSITION: Reversed in part and vacated in part.

LexisNexis(R) Headnotes

COUNSEL: HARRY KRESKY (argued), Law Offices of Harry Kresky, New York, NY, Counsel for Appellants.

GEORGE A. REIHNER, JOHN G. DEAN (argued), Elliott Reihner Siedzikowski & Egan, P.C., Scranton, PA, Counsel for Appellees, City of Wilkes-Barre, Thomas D. McGroarty and Anthony George.

SEAN P. MCDONOUGH (argued), Dougherty, Leventhal & Price, L.L.P., Moosic, PA, Counsel for Appellee, David W. Lupas.

JUDGES: Before: NYGAARD, ALITO, and

RENDELL, Circuit Judges. OPINIONBY: ALITO OPINION:

*414 OPINION OF THE COURT

ALITO, Circuit Judge:

Desi's Pizza, Inc., Desi's Famous Pizza, Inc., Desi's Pizza WP, Inc., D.F.P. Franchising, Inc., Francis Desiderio, and Martin Desiderio (collectively the "plain-

tiffs") *415 commenced this action against the City of Wilkes-Barre, Pennsylvania, and several city officials. The plaintiffs asserted that the defendants had violated their constitutional rights to due process and equal protec- tion and had violated several federal civil rights statutes. Most but not all of the challenged actions taken by the de- fendants **2 concerned a bar and restaurant known as Desi's Pizza, which was found by a state court to be a com- mon nuisance and was closed down by the state court for a year. The District Court dismissed the plaintiffs' com- plaint under the Rooker-Feldman doctrine, holding that the plaintiffs' federal claims were inextricably intertwined with the state court decision. We hold that the Rooker- Feldman doctrine does not bar the plaintiffs' equal protec- tion claim, their federal statutory discrimination claims, and their substantive due process claim. We also conclude that we cannot determine from the face of the complaint whether the plaintiffs' procedural due process claim is in- extricably intertwined with the state court decision, and we therefore vacate the order dismissing that claim and remand for the plaintiffs to set out the claim with sufficient detail to enable the District Court to determine whether it is inextricably intertwined with the state court decision.

In reviewing a District Court's decision to dismiss a complaint, we assume the truth of the facts alleged in the plaintiff's complaint. Liberty Lincoln-Mercury v. Ford Co., 134 F.3d 557, 571 n.18 (3d Cir. 1998). **3 Accordingly, we will summarize the facts alleged in the complaint. Needless to say, in recounting these allega- tions, we express no view on whether they are well- founded.

Desi's Pizza, Inc., Desi's Famous Pizza, Inc., Desi's Pizza WP, Inc., and D.F.P. Franchising, Inc. are all cor- porations organized under the laws of Pennsylvania, and Francis and Martin Desiderio are officers, directors, and

321 F.3d 411, *415; 2003 U.S. App. LEXIS 4151, **3

Page 2

principals of all of these corporations. Between some time in 1989 and March 12, 2001, Desi's Pizza, Inc. operated Desi's Pizza ("Desi's") in Wilkes-Barre.

Between the opening of the Restaurant and March of 2000, the customers patronizing Desi's were predom- inantly white. At some time in March of 2000, the City of Wilkes-Barre, its mayor (Thomas D. McGroarty) and chief of police (Anthony J. George), and David W. Lupas, the District Attorney of Luzerne County, Pennsylvania

(collectively the "defendants"), acted in concert to bring about the closure of another bar and restaurant called Chu's. Chu's clientele consisted primarily of African- Americans and Latinos. After Chu's closed, many of its former patrons became regular customers of Desi's.

The residents of Wilkes-Barre are predominantly white. **4 Following the closure of Chu's and the change in the ethnic composition of Desi's' clientele, peo- ple living in the area surrounding Desi's began to com- plain to the defendants about problems allegedly created by Desi's. Residents complained that Desi's' presence in- creased "crime, noise , and other disturbances." App. at

39. These complaints, however, were in fact motivated by a desire to drive African-Americans and Latinos out of Wilkes-Barre, and the defendants shared this objective. This desire and "public criticism" of the defendants for failing "to provide adequate policing and law enforce- ment" in the city motivated the defendants to "embark on a campaign to close down" Desi's. Id.

In furtherance of this campaign, the defendants took many actions that were adverse to the plaintiffs. These actions included filing a petition with the Pennsylvania Liquor Control Board ("Board") *416 asking the Board to decline to renew Desi's' liquor license; instructing Wilkes-Barre police officers to "regularly and conspicu- ously park outside" Desi's; asking police officers in nearby Dallas, Pennsylvania, to harass employees and customers of another restaurant operated by the Desiderios; seeking

**5 an order from a state court closing down Desi's as a public nuisance; knowingly making false and disparag- ing public statements about the plaintiffs; and "blocking efforts" by the Desiderios to "obtain a permit to open another bar and restaurant in Wilkes-Barre on spurious grounds." Id. at 39-41, 43-45. Although the defendants claimed that their efforts to close down Desi's were mo- tivated solely by the occurrence of criminal activity in and around Desi's, the defendants made no negative state- ments concerning and took no action against two other bars in Wilkes-Barre where violent altercations occurred in 2000 and 2001.

As noted above, the defendants' actions against Desi's included the filing of a complaint in a Pennsylvania state court seeking an order enjoining the operation of Desi's

on the ground that it constituted a public nuisance. This state proceeding is critical to the instant appeal, and we will thus describe it in some detail.

On about March 12, 2001, Lupas filed an action in the Luzerne County Court of Common Pleas (the "state court") pursuant to 47 P.S. § 6-611(b), seeking an order enjoining Desi's' operation for one year on the ground that it constituted a "common **6 nuisance" under 47 P.S.

§ 6-611(a). On the same date and without conducting a hearing, the state court granted a preliminary injunction closing Desi's. The state court did not give the plaintiffs the opportunity to present testimony concerning the pro- priety of the preliminary injunction until a week after the injunction was issued.

On March 16, 2001, the plaintiffs filed an answer to Lupas's complaint in the state court. On the morning of March 19, 2001, the plaintiffs filed an amended answer in the state court and initiated the present action in the District Court. In pertinent part, the plaintiffs' amended answer in the state proceeding stated that they "reserved the right" to have certain federal claims "adjudicated in the United States District Court for the Middle District of Pennsylvania" pursuant to England v. Louisiana State Bd. of Medical Examiners, 375 U.S. 411, 11 L. Ed. 2d 440,

84 S. Ct. 461 (1964). App. at 108. Specifically, the plain- tiffs reserved the right to file a federal action asserting claims against the defendants under 42 U.S.C. §§ 1981,

1982, 1983 and 1985, and the Equal Protection and Due Process Clauses of the **7 Fourteenth Amendment. The plaintiffs further stated that they did not wish to have their federal claims adjudicated by the state court, and that they were describing their federal claims to the state court only so that the state court could "construe the state law issues 'in light of ' the federal claim sic as required by Government Employees v. Windsor, 353 U.S. 364, 1 L. Ed. 2d 894, 77 S. Ct. 838 (1957)." App. at 108.

Later in the day on March 19, the state court com- menced hearings on the question whether an order clos- ing Desi's was proper. The state court heard testimony concerning this issue on March 19, 21, and 22, 2001. On March 28, 2001, the state court entered an order enjoin- ing the operation of Desi's between the dates of March

12, 2001, and March 12, 2002. Id. at 77. In an opinion accompanying its order, the state court made three find- ings that are pertinent to this appeal. First, the state court found that extensive criminal activity had taken place in and around Desi's and that there was a "clear, direct and definitive *417 causal connection between" the operation of Desi's and such criminal activity. Id. at 71. Second, the state court found that Francis Desiderio **8 was aware of this criminal activity but made little or no attempt to prevent it. Finally, the state court found that the

321 F.3d 411, *417; 2003 U.S. App. LEXIS 4151, **8

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defendants' attempt to enjoin the operation of Desi's was proper under Pennsylvania law and made the following comments:

For law enforcement officials not to have acted, given the number and nature of the complaints against Desi's , would not only have been an abdication of their responsibil- ity to investigate criminal conduct and en- force the law, but also an abandonment of the citizens whose safety and welfare they are bound to protect.

In conclusion, this Court is firmly of the Opinion that the conduct endured by the neighbors of Desi's . . . is precisely the type of conduct our legislature intended to curb when it authored Section 611 of the Liquor Code. In no uncertain terms, Desi's . . . is the archetypal nuisance bar. If the conduct and manner of operation of Desi's does not qualify as a nuisance bar, then that concept is meaningless in Pennsylvania.

Id. at 76-77. The state court made no reference to the plaintiffs' federal claims in its opinion. It should be noted that the state court's injunction has since expired and **9 that Desi's has resumed operation, albeit without a liquor license.

The plaintiffs' complaint in the instant action contains four counts. First, the complaint avers that the defendants' act of "singling out the plaintiffs' establishments" and

"treating them in a far harsher manner than other busi- nesses" violated the Equal Protection Clause. App. at 46. Second, the complaint claims that "inasmuch as defen- dants ' actions were done in retaliation for welcoming African-Americans and Latinos as patrons at their estab- lishments and were done as part of a custom and pol- icy designed to drive such persons out of Wilkes-Barre and the neighboring communities," the defendants' ac- tions violated 42 U.S.C. §§ 1981, 1982, and 1985 and the Fourteenth Amendment. Id. Third, the complaint main- tains that the defendants violated the plaintiffs' due pro- cess rights under the Fifth and Fourteenth Amendments. The complaint alleges that the defendants (a) "perverted and abused the police powers invested in them for the pur- pose of destroying plaintiffs and their businesses without legally valid justification"; (b) "acted so as to stigma- tize and harass plaintiffs without any lawful **10 basis and without due regard to the truth of statements made about plaintiffs"; and (c) "acted to wrongfully deprive plaintiffs of the use of their property and the right to pursue legitimate commercial endeavors." Id. at 46-47.

Finally, the complaint asserts state-law claims of abuse of process, tortious interference with business relation- ships, trade disparagement, and defamation. The com- plaint seeks compensatory and punitive damages and re- quests an injunction preventing the defendants from en- gaging in "further efforts to harass, disparage and destroy

the plaintiffs' businesses and directing the defendants

to allow Desi's Pizza to continue operating." Id. at 47. The defendants moved for partial dismissal of the

complaint under Fed. R. Civ. P. 12(b)(6), and the District Court responded by dismissing the complaint in its en- tirety based on the Rooker-Feldman doctrine ("Rooker- Feldman"). The Rooker-Feldman doctrine, which derives its name from the Supreme Court's decisions in Rooker v. Fidelity Trust Co., 263 U.S. 413, 68 L. Ed. 362, 44 S. Ct.

149 (1923), and District of Columbia Court of Appeals v. Feldman, 460 U.S. 462, 75 *418 L. Ed. 2d 206, 103

S. Ct. 1303 (1983), **11 "preclude s lower federal court jurisdiction over claims that were actually litigated or 'inextricably intertwined' with adjudication by a state's courts." Parkview Assocs. Pshp. v. City of Leb., 225 F.3d

321, 325 (3d Cir. 2000) (quoting Gulla v. North Strabane

Twp., 146 F.3d 168, 171 (3d Cir. 1998)).

In an opinion accompanying its order dismissing the complaint, the District Court stated that each issue raised by the plaintiffs was "intertwined with the issues in the state court action." App. at 11. The District Court held that dismissal of the first count of the complaint, which alleges an equal protection violation, was warranted because the state court, in finding that "Desi's Pizza was, unequiv- ocally, a nuisance bar," had necessarily determined that the defendants' "conduct was unrelated to retaliation or

to Desi's' minority clientele." Id. Similarly, the District Court dismissed the second count of the complaint on the ground that "in order to determine that the defen- dants were retaliating against the plaintiffs for serving minorities," the District Court "would first have to deter- mine that" the state court "was incorrect **12 in its determination that the defendants' actions were lawful dealings with a nuisance bar." Id. at 12.

The District Court treated the third count of the plain- tiffs' complaint as alleging violations of the plaintiffs' Fourteenth Amendment rights to both procedural and sub- stantive due process. The District Court held that the Rooker-Feldman doctrine barred the procedural due pro- cess component of that count for two reasons. First, the District Court reasoned as follows. In order to be protected by the guarantee of procedural due process, the plaintiffs had to have a property right under state law to continue to operate Desi's. However, the state court's determination that the continued operation of Desi's was illegal under the state liquor laws meant that the plaintiffs had no right

321 F.3d 411, *418; 2003 U.S. App. LEXIS 4151, **12

Page 4

to continue to operate Desi's under Pennsylvania law. Therefore, the plaintiffs' procedural due process claim was inextricably intertwined with the prior state court decision in the nuisance proceeding. App. at 14.

Second, the District Court held that "even accepting Plaintiffs' allegations as true, Plaintiffs were given a post- deprivation hearing and opportunity to be heard." App. at

13. **13 Presumably, the District Court meant that despite the fact that the state court initially ordered the closure of Desi's without allowing the plaintiffs to present testimony, the state court held extensive hearings a week later.

As to the plaintiffs' substantive due process theory, the District Court noted the plaintiffs' contention that govern- mental "actions which adversely affect a plaintiff's prop- erty interests give rise to a substantive due process claim if the defendants are motivated by illegitimate objectives." App. at 14. The Court reasoned that the state court had implicitly found that the defendants were not motivated by illegitimate objectives when the court determined that

"Desi's Pizza was a nuisance bar." Id.

The plaintiffs appealed the District Court's dismissal of their complaint. The plaintiffs also filed a motion in the District Court pursuant to Fed. R. Civ. P. 59(e) re- questing that the District Court reconsider its decision. In their motion for reconsideration, the plaintiffs informed the District Court that in the course of the state court proceedings, they had reserved the right to have their fed- eral claims adjudicated by the District Court pursuant to

**14 England.

The District Court denied the plaintiffs' motion for reconsideration on two grounds. First, the District Court reasoned that a litigant may make an "England reserva- tion" *419 only where a District Court has previously abstained from hearing that litigant's federal claims. Since no District Court had so abstained, the District Court con- cluded, no England reservation was available. Second, the District Court stated that even if abstention by a federal court is not a prerequisite to the availability of an England reservation, a defendant in a state court proceeding "may invoke England . . . only if the case is removable." App. at 25. In the present case, the District Court wrote, the state-court complaint did "not concern a federal question, but simply the question of whether" Desi's "constituted a nuisance," which was solely a question of Pennsylvania law. Id. Hence, the District Court concluded, the plaintiffs could not have removed the state-court action, and their attempted England reservation was invalid.

On appeal, the plaintiffs make two contentions. First, they argue that the District Court erred in holding that the England reservation was **15 not effective. Since

a proper England reservation protects a federal action from dismissal under the Rooker-Feldman doctrine, see Ivy Club v. Edwards, 943 F.2d 270, 284 (3d Cir. 1991), the plaintiffs maintain that the District Court's judgment should be reversed. Second, the plaintiffs claim that even if their England reservation was ineffective, the District Court erred in finding that their federal claims were "in- extricably intertwined" with the issues resolved by the state court. As we explain below, we agree with the plain- tiffs' second argument and consequently do not reach the question whether the England reservation was proper.

II.

The Rooker-Feldman doctrine is based on "the well- settled understanding that the Supreme Court of the United States, and not the lower federal courts, has ju- risdiction to review a state court decision." Parkview,

225 F.3d at 324. Under 28 U.S.C. § 1257, the Supreme Court has jurisdiction to review a decision by "the high- est court of a State in which a decision may be had." Since Congress has never conferred a similar power of review on the United States District Courts, **16 the Supreme Court has inferred that Congress did not intend to empower District Courts to review state court deci- sions. Feldman, 460 U.S. at 476; Gulla, 146 F.3d at 171. To ensure that Congress's intent to prevent "the lower fed- eral courts" from "sitting in direct review of the decisions of a state tribunal" is given effect, Gulla, 146 F.3d at 171, the Rooker-Feldman doctrine prohibits District Courts from adjudicating actions in which "the relief requested

. . . requires determining that the state court's decision is wrong or . . . voiding the state court's ruling." FOCUS v. Allegheny County Court of Common Pleas, 75 F.3d 834,

840 (3d Cir. 1996).

As noted above, a claim is barred by Rooker-Feldman under two circumstances: first, if the claim was "actually litigated" in state court prior to the filing of the federal action or, second, if the claim is "inextricably intertwined with the state adjudication," meaning that "federal re- lief can only be predicated upon a conviction that the state court was wrong." Parkview, 225 F.3d at 325 (in- ternal quotation marks omitted). A finding that **17 Rooker-Feldman bars a litigant's federal claims divests a District Court of subject matter jurisdiction over those claims. Guarino v. Larsen, 11 F.3d 1151, 1156-57 (3d Cir.

1993). Our review of the District Court's determination regarding its own subject matter jurisdiction is plenary. Gulla, 146 F.3d at 171.

*420 III.

The defendants do not claim that the plaintiffs "actu- ally litigated" their federal claims before the state court for the purposes of the Rooker-Feldman doctrine. However,

321 F.3d 411, *420; 2003 U.S. App. LEXIS 4151, **17

Page 5

we are required to inquire on our own motion whether the District Court possessed subject matter jurisdiction over the present case. Bracken v. Matgouranis, 296 F.3d

160, 162 (3d Cir. 2002) ("This Court has a continuing obligation to sua sponte raise the issue of subject matter jurisdiction when it is in question."); Morel v. INS, 144

F.3d 248, 251 (3d Cir. 1998) (" A federal court, including an appellate court, will raise lack of subject-matter juris- diction on its own motion.") (quoting Insurance Corp. of Ireland, Ltd. v. Compagnie des Bauxites de Guinee,

456 U.S. 694, 702, 72 L. Ed. 2d 492, 102 S. Ct. 2099

(1982)). **18 Hence, we will briefly discuss the ques- tion whether the plaintiffs "actually litigated" their federal claims in the state court for Rooker - Feldman purposes. Our recent decision in Parkview describes the fac- tors to be considered in determining whether an issue was "actually litigated" in a state court proceeding. In Parkview, the plaintiff applied to a city zoning officer for a permit to convert a "nursing home and personal care facility" into a structure functioning solely as a "personal care facility." Parkview, 225 F.3d at 322. The zoning of- ficer granted the requested permit, but residents of the city objected and appealed to the city's Zoning Hearing Board. The Board reversed the zoning officer's determi- nation, finding that the plaintiff's "proposed use would change the essential character of the prior use and would increase non-conformity." Id. The plaintiff then appealed the Board's decision to the Court of Common Pleas of Lebanon County, Pennsylvania. Under Pennsylvania law, the state court's review of the Board's decision was con- fined to the question whether substantial evidence sup- ported the Board's determination that the proposed use would **19 "increase non-conformity." Id. at 326. The plaintiff did not argue any issues of federal law in its brief to the state court, and the state court's opinion made no

statements regarding any issues of federal law.

The state court affirmed the Board's decision, and the plaintiff subsequently filed an action in federal court claiming that the city had denied the plaintiff's request for a permit in order to exclude disabled persons from the city in violation of, inter alia, the Fair Housing Act, the Americans with Disabilities Act, and the Rehabilitation Act of 1973. The city claimed that the federal action was barred by Rooker-Feldman because the proceeding be- fore the state court amounted to an "actual litigation" of the plaintiff's federal claims. We held, on two grounds, that the plaintiff had not "actually litigated" its federal statutory claims before the state court. First, the plaintiff had "not present ed its disability-based discrimination claims to the state courts on appeal from the Board's de- cision ." Id. at 325. Second, the state court's "opinions reveal ed that" the court had affirmed the Board's deci- sion "without deciding whether **20 it . . . violated

federal or state anti-discrimination laws." Id. at 325-26. Applying our holding in Parkview to the present case, we hold, for two reasons, that the plaintiffs did not actu- ally litigate their federal claims in the state court proceed- ing. First, the plaintiffs made no reference to their federal claims in the answer they filed in the state court proceed- ing beyond the statement that they reserved the right to file their federal claims in the District Court, and we have found nothing in the record that suggests that the plaintiffs made arguments or presented evidence to the state court concerning *421 the validity of their federal claims. Second, the state court's opinion contains no discussion of any issues of federal law. As noted above, the state court confined its discussion to the question whether Desi's con- stituted a "common nuisance" under Pennsylvania law. For these reasons, it is clear that the plaintiffs did not "ac- tually litigate" their federal claims in the District Court

within the meaning of the Rooker-Feldman doctrine. IV.

A plaintiff's claim for relief in a federal action is "in- extricably intertwined" with an issue adjudicated **21 by a state court under two circumstances: (1) "when in order to grant the federal plaintiff the relief sought, the federal court must determine that the state court judgment was erroneously entered" and (2) when "the federal court must . . . take action that would render the state court's judgment ineffectual." FOCUS, 75 F.3d at 840.

In the first circumstance discussed above, Rooker- Feldman bars the plaintiff's federal claim because grant- ing the plaintiff relief would require the federal court to conclude that the State Court made an incorrect factual or legal determination. In cases falling into this category,

"federal relief can only be predicated upon a conviction that the state court was wrong." Centifanti v. Nix, 865

F.2d 1422, 1430 (3d Cir. 1989) (quoting Pennzoil Co. v. Texaco, Inc., 481 U.S. 1, 25, 95 L. Ed. 2d 1, 107 S. Ct.

1519 (1987) (Marshall, J., concurring)).

In determining whether a federal decision favorable to the plaintiffs would mean that a prior state-court judg- ment was wrong, it is necessary to identify the pillars on which the state-court judgment rests. To do this, we consider the questions of state law that the state court was **22 obligated to reach in order to render its deci- sion. Our decision in Ernst v. Child & Youth Services, 108

F.3d 486 (3d Cir. 1997), illustrates this process. In that case, a state child welfare agency filed suit in state court against the grandmother of a child, seeking to deprive the grandmother of custody and to have the child placed in foster care. The state court held that the child was "depen- dent" under Pennsylvania law, meaning that the child was

321 F.3d 411, *421; 2003 U.S. App. LEXIS 4151, **22

Page 6

"without proper parental care or control," and further de- termined that foster care would be in "the best interests of the child." Ernst, 108 F.3d at 492. The grandmother sub- sequently brought suit against the child welfare agency in federal court, claiming that the agency had violated her right to substantive due process by seeking the termina- tion of her custody out of "malice or personal bias." Id. The child welfare agency argued that the Rooker-Feldman doctrine divested the District Court of jurisdiction. The agency maintained that, in holding that the child was "de- pendent" and in need of foster care, the state court had necessarily determined that the defendant's state court suit was not based **23 on an improper motive.

We rejected the agency's Rooker-Feldman argument, reasoning that under Pennsylvania law " n either an ad- judication of dependency nor a determination of the ap- propriate disposition of a dependent child is based on the intentions or states of mind of the party seeking the de- pendency determination." Id. Accordingly, a determina- tion that the agency sought to terminate the grandmother's custody of the child with an improper motive would not necessarily imply that the state court had erred in deter- mining that the child was dependent under Pennsylvania law. See also Parkview, 225 F.3d at 326 (holding that be- cause Pennsylvania law limited a *422 state court's review of a zoning board's decision to the issue whether the board's determinations were supported by substantial evidence, the Rooker-Feldman doctrine did not prevent the plaintiffs from filing a federal action claiming that the zoning board had engaged in disability discrimination following a state court's review of the board's determina- tions); Gulla, 146 F.3d at 172 (holding that a state court's determination that the plaintiff landowners lacked stand- ing to challenge **24 a township's approval of a sub- division did not bar the plaintiffs from later asserting due process, equal protection, and Just Compensation Clause claims in federal court, because " u nder Pennsylvania law, the state court could not resolve the merits of the Gullas' constitutional claims if they lack standing to bring their suit"); FOCUS, 75 F.3d at 842 (holding that an order issued by the Pennsylvania Supreme Court in which it refused to exercise its "King's Bench" jurisdic- tion to overturn gag orders issued by a lower state court did not implicitly reject the plaintiffs' claim that the gag orders violated the First Amendment, as Pennsylvania law authorized the Pennsylvania Supreme Court to decline to exercise its King's Bench jurisdiction where the case did not present an issue of "immediate public importance"); Whiteford v. Reed, 155 F.3d 671, 674 (3d Cir. 1992) (hold- ing that Rooker-Feldman did not bar the plaintiff's federal action where a Pennsylvania state court had previously dismissed the plaintiff's petition for review of an agency's decision for failure to comply with the Pennsylvania Rules

of Appellate Procedure, since the extent **25 of the plaintiff's compliance with those rules had no bearing on the merits of the plaintiff's constitutional claims).

In the second situation discussed above, the plaintiff's federal claim is precluded because the relief sought would undo or prevent the enforcement of the state court's or- der. For instance, in Stern v. Nix, 840 F.2d 208 (3d Cir.

1988), the Supreme Court of Pennsylvania had issued an order revoking the plaintiff's license to practice law. The plaintiff sued the Justices of the Pennsylvania Supreme Court, seeking a "declaratory judgment and a permanent injunction restraining the Supreme Court of Pennsylvania from disbarring the plaintiff and other similarly situated attorneys unless the Supreme Court . . . first grant ed an evidentiary hearing to the attorney" in question. Stern,

840 F.2d at 212. We held that Rooker-Feldman prevented the plaintiff from obtaining an injunction against his dis- barment, reasoning that "any attempt to enjoin the en- forcement of a state court judgment . . . is suspect. If the proposed injunction were granted , the federal court would effectively reverse the state court judgment, and thus **26 'review a final judgment of a state court in judicial proceedings,' contrary to Rooker-Feldman." Id.; cf. Centifanti, 865 F.2d at 1429-30 (holding that a plain- tiff's suit in federal court, which sought an injunction against future denials of petitions for readmission to the Pennsylvania bar without certain procedural safeguards, was not barred by Rooker-Feldman because it sought only prospective relief and thus would not prevent the enforce- ment of the Pennsylvania Supreme Court's order denying the plaintiff's petition for readmission). Thus, Rooker- Feldman does not allow a plaintiff to seek relief that, if granted, would prevent a state court from enforcing its orders.

V. A.

Applying the above framework to the instant case, we turn to the question *423 whether a decision in the plaintiffs' favor on their federal claims would mean that the judgment of the state court in the nuisance action was wrong. The defendants point to the state court's finding that Desi's was a "common nuisance" under Pennsylvania law and the state court's statement that the defendants would have "abdicated" their responsibilities as law en- forcement officials if they had **27 failed to seek the closure of Desi's. The defendants argue that affording the plaintiffs relief on their federal claims would necessar- ily overturn these aspects of the state court decision. We disagree.

First, the defendants' argument overlooks the fact that

321 F.3d 411, *423; 2003 U.S. App. LEXIS 4151, **27

Page 7

the plaintiffs' claims are not based solely on the defen- dants' alleged actions against Desi's, but encompass al- leged harassment impacting the Desiderios' other busi- nesses as well. As noted above, the plaintiffs' complaint alleges that the defendants, among other things, instructed police officers in Dallas, Pennsylvania, to harass the em- ployees and customers of another establishment oper- ated by the Desiderios and prevented the Desiderios from opening another establishment in Wilkes-Barre. App. at

39-44. The state court findings on which the defendants rely relate exclusively to Desi's Pizza. It is therefore ap- parent that the plaintiffs' federal claims, insofar as they relate to the Dallas restaurant and the second Wilkes- Barre restaurant, are not inextricably intertwined with the state court's judgment.

Second and more important, a decision in the plain- tiffs' favor on their federal equal protection and statutory discrimination **28 claims would not mean that the state court erred in finding that Desi's was a common nui- sance or in commenting about the defendants' obligation to take action against Desi's. This is so because the state court's finding that Desi's was a "common nuisance" un- der Pennsylvania law does not mean that a "campaign of harassment" against that establishment, such as the one allegedly waged by the defendants, would comport with the Equal Protection Clause or with 42 U.S.C. §§ 1981 and 1982. n1

n1 As noted above, the Complaint also re- quested relief pursuant to 42 U.S.C. §§ 1983 and

1985. We need not independently address the ques- tion whether the plaintiffs have stated a claim un- der either of the above provisions, because that inquiry turns on whether the defendants violated some other federal constitutional or statutory pro- vision. It is well established that the success of a Section 1983 claim is dependent on the plain- tiff's ability to state a cause of action under some other federal constitutional or statutory provision. See, e.g., Collins v. City of Harker Heights, 503

U.S. 115, 119, 117 L. Ed. 2d 261, 112 S. Ct. 1061

(1992) ("Although Section 1983 provides the cit- izen with an effective remedy against those abuses of state power that violate federal law, it does not provide a remedy for abuses that do not violate federal law.").

As to the plaintiffs' 42 U.S.C. § 1985 claim, we assume at the outset that the plaintiffs are alleg- ing that the defendants' conduct violated Section

1985(3). Although the plaintiffs do not specify which subsection they believe the defendants to have violated, Sections 1985(1) and 1985(2) clearly do not pertain to the present case. Section 1985(1)

prohibits "two or more persons" from interfering with a federal officer's performance of his duties,

42 U.S.C. § 1985(1), and Section 1985(2) prohibits conspiracies to obstruct justice and to intimidate litigants and witnesses, 42 U.S.C. § 1985(2). The plaintiffs are not federal officers, and they do not allege that the defendants obstructed justice or in- timidated them in their capacities as witnesses or litigants. Section 1985(3), however, prohibits con- spiracies to deprive persons of certain constitutional rights, and is thus the most likely basis for the plain- tiffs' Section 1985(3) claim. 42 U.S.C. § 1985(3); Spencer v. Casavilla, 44 F.3d 74, 77 (2d Cir. 1994).

**29

As noted above, the state court held that Desi's con- stituted a "common nuisance" under 47 P.S. § 6-611(a). In pertinent part, that statute reads as follows:

*424 Any room, house, building, boat, vehicle, structure or place . . . where alcohol

. . . is sold, . . . in violation of this act, and all such liquids, beverages and property kept or used in maintaining the same, are hereby declared to be common nuisances . . . .

47 P.S. § 6-611(a). Thus, in holding that Desi's was a

"common nuisance" under Pennsylvania law, the state court necessarily determined that Desi's was an establish- ment where alcohol was sold "in violation of this act." An establishment sells alcoholic beverages "in violation of this act" within the meaning of Section 6-611(a) where the establishment sells alcohol in violation of one or more provisions of the Pennsylvania Liquor Code ("Liquor Code") or the Pennsylvania Crimes Code ("Crimes Code"). Commonwealth v. Sal-Mar Amusements, 428

Pa. Super. 321, 630 A.2d 1269, 1273 (Pa. Super. 1993)

("We are mindful that a court may consider violations of the crimes code when deciding whether the closure of an establishment is proper" under **30 Section 6-

611(a));Commonwealth v. J-D 201 Corp., 38 Pa. D. & C.3d 279, 286 (Pa. C. Ct. 1983) ("347 Pa. C.S. § 6-611 expressly provides that the district attorney may . . . pro- ceed in a civil action to enjoin those who . . . violate the provisions of the Liquor Code."). Accordingly, in deter- mining that Desi's constituted a "common nuisance," the State Court necessarily held that Desi's had sold alcoholic beverages in violation of the Liquor Code or the Crimes Code. The question before us, therefore, is whether a find- ing that Desi's violated the Liquor Code or the Crimes Code necessarily implies that the defendants did not vi- olate any of the federal laws on which the plaintiffs rely

321 F.3d 411, *424; 2003 U.S. App. LEXIS 4151, **30

Page 8

in their complaint. As we show below with respect to the plaintiffs' equal protection and statutory discrimination claims, the state court's finding carries no such necessary implication.

We will first treat the plaintiffs' claims that the defen- dants' alleged campaign of harassment violated the Equal Protection Clause and 42 U.S.C. §§ 1981 and 1982, as all of those claims rely on the premise that the defendants' actions were undertaken with a racially discriminatory in- tent. Second, **31 we will address the plaintiffs' claim that the defendants' acts violated the Due Process Clause of the Fourteenth Amendment.

It is appropriate to discuss the plaintiffs' Equal Protection and Section 1981 and 1982 claims together because the District Court resolved them in an identical fashion. As noted above, the District Court observed that the plaintiffs' Equal Protection claim and their claims un- der 42 U.S.C. §§ 1981 and 1982 are all predicated on the allegation that the defendants' various actions against the plaintiffs were motivated by a desire to drive African- Americans and Latinos out of Wilkes-Barre. The District Court dismissed all of the above claims on the ground that the state court's finding that Desi's constituted a common nuisance and its comment that the defendants would have abdicated their responsibilities if they had not attempted to shut down Desi's necessarily mean that the defendants did not seek the closure of Desi's with discriminatory intent. We cannot agree.

As we discussed above, the state court's finding that Desi's was a "common nuisance" means only that Desi's operated in violation of the Liquor Code or the Crimes Code. To **32 adopt the District Court's position, there- fore, we would be required to endorse the proposition that the discriminatory enforcement of a state statute cannot constitute a violation of the Equal Protection Clause or 42

U.S.C. §§ 1981 and 1982 if it is clear that the *425 per- son against whom the law is enforced actually violated that law. It is well established, however, that selective prosecution may constitute illegal discrimination even if the prosecution is otherwise warranted. n2 See, e.g., Wayte v. United States, 470 U.S. 598, 608, 84 L. Ed. 2d 547, 105

S. Ct. 1524 (1985) (" A lthough prosecutorial discretion is broad, it is not unfettered. Selectivity in the enforce- ment of criminal laws is . . . subject to constitutional con- straints.") (quoting United States v. Batchelder, 442 U.S.

114, 125, 60 L. Ed. 2d 755, 99 S. Ct. 2198 (1979)); United States v. Schoolcraft, 879 F.2d 64, 68 (3d Cir. 1989) ("A decision to prosecute is selective and violates the right to equal protection when it is made on a discriminatory ba- sis with an improper motive."); United States v. Berrigan,

482 F.2d 171, 174 (3d Cir. 1973) **33 (" A lthough

the government is permitted 'the conscious exercise of some selectivity' in the enforcement of its criminal laws, any 'systematic discrimination' in enforcement, or 'un- just and illegal discrimination between persons in sim- ilar circumstances,' violates the equal protection clause and renders the prosecution invalid.") (internal citations omitted). Although the cases cited above pertain to the Equal Protection Clause, their reasoning is equally ap- plicable to the plaintiffs' statutory discrimination claims. Brown v. Philip Morris, Inc., 250 F.3d 789, 797 (3d Cir.

2001) (stating that in order to state a claim under either

42 U.S.C. § 1981 or 42 U.S.C. § 1982, a plaintiff must show that the defendant acted with discriminatory intent). Thus, without violating Rooker-Feldman, the plaintiffs' Equal Protection and Section 1981 and 1982 claims may proceed on the theory that, although there were numerous establishments in Wilkes-Barre that clearly constituted common nuisances under Pennsylvania law, the defen- dants targeted Desi's with the intent to drive certain ethnic groups out of the city. n3 App. at 46.

n2 As noted above, the plaintiffs' complaint proceeds on a theory of selective prosecution. The complaint specifically alleges that Desi's was treated in a "far harsher manner than other busi- nesses similarly situated." App. at 46.

**34

n3 We stress that we hold only that these claims are not barred by Rooker-Feldman. We have not considered any other arguments that may be made regarding these claims.

The defendants stress the state court's determination that they would have "abdicat ed . . . their responsibil- ity to investigate criminal conduct and enforce the law" if they had failed to seek the closure of Desi's, App. at

76, but we do not see how this speaks to their motive or why this statement necessarily means that the defen- dants did not discriminate against the plaintiffs. We may assume that Desi's' violations of the Liquor Code and the Crimes Code were so obvious and flagrant that Wilkes- Barre law enforcement officials would have been derelict in their duties if they had failed to shut down Desi's. The theory of the plaintiffs' Equal Protection and statutory dis- crimination claims, however, is that other establishments possessing liquor licenses in Wilkes-Barre had commit- ted equally serious and obvious violations of the Liquor Code and/or the Crimes Code, and that the defendants overlooked those violations because **35 of the ethnic composition of those establishments' clientele. n4 Hence, it does *426 not follow from the state court's determina-

321 F.3d 411, *426; 2003 U.S. App. LEXIS 4151, **35

Page 9

tion that Desi's was a flagrant nuisance that the defendants did not act against the plaintiffs with improper motives.

n4 The defendants contend that the complaint did not predicate the plaintiffs' Equal Protection claim on the theory that, although Desi's may have been a "common nuisance" under Section 6-611(a), the defendants did not target other establishments that also constituted common nuisances. Rather, the defendants maintain, the plaintiffs initially pro- ceeded on the theory that Desi's was not a common nuisance, but the defendants treated Desi's as such with the purpose of driving African-Americans and Latinos out of Wilkes-Barre. Hence, the defendants argue, the plaintiffs have waived their right to argue the former theory. In support of this argument, the defendants point out that the plaintiffs' complaint states that the "crime, noise and other disturbances" that occurred in and around Desi's in 2000 and 2001 were "not unusual for a restaurant and bar." App. at

39.

We disagree with the defendants' contention. In their complaint, the plaintiffs alleged that the de- fendants' act of "singling out" Desi's and "treating

it in a far harsher manner than other businesses similarly situated violated plaintiffs' right to equal protection." App. at 46. This statement can be inter- preted as alleging that the defendants treated Desi's in a harsher manner than other nuisance bars. The plaintiffs' allegations regarding the commonality of the incidents in and around Desi's are not inconsis- tent with the above statement. It may be the case that many establishments in Wilkes-Barre consti- tuted "common nuisances" under Pennsylvania law at all times relevant to the complaint, but the defen- dants chose to focus solely on Desi's.

**36

For these reasons, we hold that the plaintiffs' Equal

Protection and 42 U.S.C. §§ 1981 and 1982 claims are not

"inextricably intertwined" with the state court's judgment for the purposes of Rooker - Feldman.

We next discuss the relationship between the state court's determination that Desi's was a common nuisance and the plaintiffs' procedural and substantive due process claims. n5 We find that the complaint does not set out the procedural due process claim with sufficient particularity to permit us to decide whether it is barred by Rooker- Feldman. As to the substantive due process claim, we hold that dismissal based on Rooker - Feldman was not correct.

n5 Because the District Court interpreted the complaint as asserting both procedural and sub- stantive due process claims, we proceed on the as- sumption that the complaint made both types of due process claim. The question whether the complaint adequately alleges procedural due process claims, in addition to substantive due process claims, has not been briefed before us, and we do not express any view on that issue at this time.

**37

Procedural due process. In order to determine whether a judgment in the plaintiffs' favor on their pro- cedural due process claims would be inconsistent with the state court judgment, we must know (a) the property interests that figure in those claims and (b) the procedures that the plaintiffs claim were due but not provided. The complaint is far from clear on either of these points, at least with respect to some claims that the complaint may assert. Before we decide whether the plaintiffs' procedu- ral due process claims are barred by Rooker-Feldman, we believe that the plaintiffs should be required to spell out those claims. As a result, we do not decide in this appeal whether Rooker-Feldman dooms the plaintiffs' procedu- ral due process claims. See Rivers v. McLeod, 252 F.3d

99, 102 (2d Cir. 2002) (vacating a District Court's order dismissing the plaintiff 's complaint based on the Rooker- Feldman doctrine and remanding for clarification of the facts underlying the plaintiff's claims for relief).

Substantive due process. We next consider the ef- fect of the Rooker - Feldman doctrine on the plaintiffs' substantive due process theory. As **38 noted above, the plaintiffs claim that the defendants violated substan- tive due process by depriving them of the ability to put their property to productive use. To obtain relief under the substantive component of the Due Process Clause for a deprivation of property, a plaintiff must make two

*427 showings. First, the plaintiff must "establish as a threshold matter that he has a protected property interest to which the Fourteenth Amendment's due process protec- tion applies." Woodwind Estates, Ltd. v. Gretkowski, 205

F.3d 118, 123 (3d Cir. 2000). While the case law concern- ing which property interests are protected "provides very little guidance," Homar v. Gilbert, 89 F.3d 1009, 1021

(3d Cir. 1996), one general principle is clear: "whether a certain property interest" is constitutionally protected

"is not determined by reference to state law, but rather depends on whether that interest is 'fundamental' under the United States Constitution." Nicholas v. Pennsylvania State Univ., 227 F.3d 133, 140 (3d Cir. 2000); see also Dacosta v. Nwachukwa, 304 F.3d 1045, 1048 (11th Cir.

2002) (" S ubstantive rights 'created only by state **39

law (as is the case with tort law and employment law)

321 F.3d 411, *427; 2003 U.S. App. LEXIS 4151, **39

Page 10

are not subject to substantive due process protection . .

. because substantive due process rights are created only by the Constitution.'") (quoting McKinney v. Pate, 20 F.3d

1550, 1556 (11th Cir. 1994) (en banc)). Second, the plain- tiff must show that a governmental actor's behavior in de- priving him of the interest in question was "so egregious, so outrageous, that it may fairly be said to shock the con- temporary conscience." County of Sacramento v. Lewis,

523 U.S. 833, 847 n.8, 140 L. Ed. 2d 1043, 118 S. Ct.

1708 (1998).

We have serious doubts whether the plaintiffs' alle- gations state a substantive due process claim, but that is not the issue before us. Rather, the issue is whether the Rooker - Feldman doctrine bars that claim, and we are convinced that it does not. The District Court concluded that the plaintiffs' substantive due process claim was inex- tricably intertwined with the state court decision because the state court held that the plaintiffs had no right un- der Pennsylvania law to operate Desi's during the year in question. The District Court reasoned that if it were to hold that the **40 plaintiffs had been deprived of a property interest protected by substantive due process, its decision would necessarily mean that the state court decision regarding the plaintiffs' property rights was in- correct. We must disagree with the District Court on this point because, as noted above, the presence or absence of property rights under state law is not dispositive of the question whether a person has a property interest pro- tected by substantive due process.

We reach the same conclusion concerning the question whether the defendants' alleged campaign of harassment against the plaintiffs would "shock the contemporary con- science." Again, the state court found only that Desi's was a common nuisance under state law and that the defen- dants were justified in believing Desi's to be such. It does not follow from the state court's findings that the defen- dants' alleged act of singling out Desi's for harsher treat- ment with the goal of driving African-Americans and Latinos out of Wilkes-Barre would not shock the con- science. Accordingly, we hold that the Rooker-Feldman doctrine does not bar the plaintiffs' substantive due pro- cess theory.

VI.

The defendants finally argue that since the **41 Rooker-Feldman doctrine divests federal courts of juris- diction to order relief that prevents the enforcement of an order previously entered by a state court, Rooker- Feldman precludes the plaintiffs' attempt to obtain an injunction against the closure of Desi's and further ha- rassment by the defendants. We disagree. The plaintiffs' request for an injunction against the closure of Desi's pur- suant to the state court's order is moot, as *428 the state

court's injunction has expired and Desi's has resumed op- erations. See, e.g., Orion Sales v. Emerson Radio Corp.,

148 F.3d 840, 842 (7th Cir. 1998) (holding that where a District Court's preliminary injunction preventing the ap- pellant from terminating its agreement with the defendant had expired, the appellant's appeal of the District Court's decision to grant that injunction was moot); Hodges v. Schlinkert Sports Assocs., 89 F.3d 310, 312 (6th Cir.

1996) (holding that where a non-competition clause in a contract had expired by its own terms, the plaintiff 's appeal from the District Court's denial of the plaintiff 's request for a preliminary injunction enforcing the clause was moot). Moreover, Rooker-Feldman **42 does not apply to the plaintiffs' request for an injunction against future harassment, since no state court order currently governs the plaintiffs' conduct, and the requested injunc- tion thus cannot prevent the enforcement of a state court order. Therefore, the aspect of the Rooker-Feldman doc- trine prohibiting federal courts from granting relief that overrides relief granted by state courts does not preclude the plaintiffs' request for an injunction.

VII.

Defendant Lupas requests that we affirm the judgment in his favor on the alternative ground that he is entitled to absolute prosecutorial immunity from suit for the acts that he allegedly took against the plaintiffs, because he performed those acts in his capacity as a state prosecutor. See Imbler v. Pachtman, 424 U.S. 409, 47 L. Ed. 2d 128,

96 S. Ct. 984 (1976). The plaintiffs respond that Lupas did not raise this defense in the District Court, and that in any event he is being sued for acts other than the prosecution of an action in court.

Absolute immunity is an affirmative defense that should be asserted in an answer. See Fed. R. Civ. P. 12(b). Here, the District Court dismissed the plaintiffs' action

**43 on its own motion before Lupas filed an answer, and therefore Lupas cannot be faulted for failing to raise the defense in the District Court. Krohn v. United States,

742 F.2d 24, 29 (2d Cir. 1984) (" T he absolute immunity defense, which on a motion to dismiss translates to failure to state a claim, is not a defense which must be raised on the first motion to dismiss or waived under" Federal Rules of Civil Procedure "12(g) and 12(h)(2)."). Nevertheless, we "generally decline to address issues that have not been passed upon below absent exceptional circumstances," Equibank, N.A. v. Wheeling-Pittsburgh Steel Corp., 884

F.2d 80, 86 (3d Cir. 1989), and we see no such exceptional circumstances in this case. On the contrary, because of the fact-intensive nature of the inquiry as to whether the par- ticular actions allegedly taken by Lupas fall within the scope of absolute prosecutorial immunity, we believe that it is preferable for that issue to be addressed initially by

321 F.3d 411, *428; 2003 U.S. App. LEXIS 4151, **43

Page 11

the District Court. VIII.

For the reasons explained above, we hold that the District Court erred in concluding that the plaintiffs' Equal Protection claim, their statutory discrimination **44 claims, and their substantive due process claim are "in-

extricably intertwined" with the state court's order. We therefore reverse the dismissal of those claims. We are unable at this juncture to determine whether the same is true of the plaintiffs' procedural due process claim, and we therefore vacate that part of the District Court's decision and remand for further proceedings.

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