Joseph Fessler v. Kirk Sauer

455 F. App'x 220
CourtCourt of Appeals for the Third Circuit
DecidedDecember 7, 2011
Docket11-3022
StatusUnpublished
Cited by3 cases

This text of 455 F. App'x 220 (Joseph Fessler v. Kirk Sauer) is published on Counsel Stack Legal Research, covering Court of Appeals for the Third Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Joseph Fessler v. Kirk Sauer, 455 F. App'x 220 (3d Cir. 2011).

Opinion

OPINION

PER CURIAM.

Appellant Joseph Fessler, proceeding pro se, sued federal and local officials on May 17, 2010, seeking a hearing regarding the taking of his property by the City of Wilkes-Barre in 1973. Fessler now appeals the dismissal of his complaint against officials of the United States Department of Housing and Urban Development (“HUD”), the U.S. Attorney General, and officials of the City of Wilkes-Barre, Pennsylvania. Fessler also seeks review of the District Court’s order enjoining him from filing any new action in connection with the taking of his property in 1973. For the following reasons, we will affirm.

Fessler received compensation for the taking of his property by Wilkes-Barre’s Redevelopment Authority and he signed a General Release, but after doing so he sought additional compensation for reloca *222 tion expenses. On September 30, 1975, the Redevelopment Authority determined that he was not eligible for additional compensation under Pennsylvania’s eminent domain code. The Redevelopment Authority advised Fessler that he could appeal to the Philadelphia Area Office of HUD, and he did so. Attached to his Complaint was a letter from HUD dated January 15, 1976, signed by defendant Paul Cain and indicating that HUD agreed with the Redevelopment Authority’s determination that Fessler was not entitled to a relocation payment because he owned a similar business in the area of the taking. Evidently, there then was a hearing in February, 1976, before a Judge Bigelow, but Fessler was not satisfied with the result.

In 1980, Fessler sued in the United States District Court for the Middle District of Pennsylvania, see Fessler v. Redevelopment Authority of City of Wilkes Barre, D.C. Civ. No. 80-cv-00141. The District Court dismissed the action for lack of federal subject matter jurisdiction, explaining that Fessler had an unfettered right to judicial review of the Redevelopment Authority’s determination in the state courts only, and that those courts were competent to decide his claim. We affirmed on April 5, 1982 in Fessler v. Redevelopment Authority, 681 F.2d 805 (3d Cir.1982) (Table). Fessler then sought certiorari in the United States Supreme Court, but the Supreme Court denied his petition on October 4, 1982, see id., 459 U.S. 863, 103 S.Ct. 140, 74 L.Ed.2d 119 (1982).

That should have been the end of the matter in the federal courts, but Fessler sued three more times in federal court, see Fessler v. O’Karma, D.C. Civ. No. 87-cv-00849, Fessler v. Finlayson, D.C. Civ. No. 89-cv-01647, and Fessler v. Kirk Sauer Community Development, D.C. Civ. No. 07-cv-01939, over the same factual circumstances. All three cases were dismissed, and, in the latter two cases, the District Court admonished Fessler that further litigation of a harassing nature could result in sanctions.

Fessler took an appeal to this Court after his case at D.C. Civ. No. 07-cv-01939 was dismissed by the District Court on the basis of claim preclusion. In this 2007 case, Fessler sued Kirk Sauer, Richard Gel hard, Paul Cain, and Lewis Attordo, just as he has in the instant action, and there, as here, he claimed dissatisfaction with the Redevelopment Authority’s determination of the relocation payment issue. We summarily affirmed, not on the basis of claim preclusion, but because “our review of the Fesslers’ case shows that they have raised no obvious federal claims. An action seeking adequate compensation after one’s property has been taken by a state is appropriately raised in state court. In addition, the Fesslers’ case concerns events which occurred more than three decades ago and would have been appropriately dismissed by the District Court as time-barred.” Fessler v. Sauer, 316 Fed.Appx. 174, 176-77 (3d Cir.2009) (citations omitted), cert. denied, — U.S.-, 130 S.Ct. 1142, 175 L.Ed.2d 973 (2010). 1

In this, Fessler’s most recent action, the HUD defendants were sued under Titles VI and VIII of the Civil Rights Act. The specific allegation against the state defendants was not clear from the Complaint, but presumably is the same claim as before — that Fessler is owed additional compensation under the state eminent domain *223 code. Fessler attached to his Complaint the January 15, 1976 letter from defendant Cain, and he referred to this letter, and Cain’s statement therein, that he could have “judicial review through the courts” of his relocation expenses claim.

The defendants moved to dismiss the Complaint, and, in addition, the federal defendants sought an injunction barring Fessler from filing any other suits in federal court concerning the 1973 taking of his property. In a Report and Recommendation, the Magistrate Judge concluded that Fessler’s Title VI and Title VIII causes of action did not state a claim for relief and were subject to dismissal under Fed. R. Civ. Pro. 12(b)(6) and Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 557, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). With respect to the claims against the state defendants, the Magistrate Judge concluded that our reasoning in Fessler, 316 Fed.Appx. at 176-77, concerning the lack of subject matter jurisdiction and the untimeliness of the claims, would apply with equal force to the instant action. The Magistrate Judge concluded that two of the defendants were not properly served, and thus the action against them was subject to dismissal under Fed.R.Civ.P. 4(m). Last, the Magistrate Judge recommended that Fessler be enjoined from filing any further actions concerning the 1973 taking of his property. Thereafter, defendant Sauer also moved to enjoin Fessler.

In an order entered on March 25, 2011, the District Court adopted the Report and Recommendation, granted the defendants’ motions to dismiss, dismissed the two defendants who were not served, and granted the federal defendants’ motion to enjoin Fessler from further filings. The court held that Fessler was enjoined “from filing any new action or proceeding, the claims of which arise from the 1973 taking of [his] property by the Redevelopment Authority of the City of Wilkes-Barre, in this federal court against any of the captioned Federal Defendants ... without first obtaining leave of [court].” In an order entered on March 29, 2011, the District Court granted defendant Sauer’s motion to enjoin Fessler from filing any more actions against Sauer based on the 1973 taking unless Fessler first obtains leave of court. The District Court reasoned that Sauer should not be forced to defend future frivolous lawsuits, that Fessler had adequate notice that he might be enjoined, and that his pattern of filing meritless and repetitive actions warranted enjoining any future such actions.

Fessler filed a motion for reconsideration, calling the District Court’s attention to Pennsylvania Deputy Auditor General C. Paul Brubaker’s August 13, 1975 letter.

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455 F. App'x 220, Counsel Stack Legal Research, https://law.counselstack.com/opinion/joseph-fessler-v-kirk-sauer-ca3-2011.