Marcder Guerrier v. Pennsylvania State Police

• Court: Court of Appeals for the Third Circuit
• Decided: June 27, 2024
• Docket: 23-2761
• Status: Unpublished

Opinion

NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _______________________

No. 23-2761 _______________________

MARCDER M. GUERRIER, Appellant

v.

PENNSYLVANIA STATE POLICE; ANDREW AVDULLA, a/k/a Andi I. Avdulla

_______________________

On Appeal from the United States District Court for the Eastern District of Pennsylvania District Court No. 2-20-cv-06569 Chief District Judge: The Honorable Mitchell S. Goldberg __________________________

Submitted under Third Circuit L.A.R. 34.1(a) June 27, 2024

Before: JORDAN, SMITH, Circuit Judges, and BUMB, Chief District Judge*

(Filed: June 27, 2024) __________________________

OPINION† __________________________

* Honorable Renée Marie Bumb, Chief District Judge of the United States District Court for the District of New Jersey, sitting by designation. † This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent. SMITH, Circuit Judge.

Marcder M. Guerrier’s 2006 Maserati automobile was seized at the direction

of Pennsylvania State Police Trooper Andrew Avdulla. It was then towed and

impounded by the Philadelphia Parking Authority (PPA), and sold at auction.

Guerrier sued the Pennsylvania State Police (PSP), Trooper Avdulla, and the PPA,

alleging that they violated his rights under the Fourth Amendment, the Due Process

Clause of the Fifth Amendment,1 and the Excessive Fines Clause of the Eighth

Amendment. The District Court granted the PPA’s motion to dismiss under Rule

12(b)(6). Thereafter, PSP and Trooper Avdulla successfully moved for summary

judgment. This timely appeal followed.2 We will affirm.

I.

Guerrier is the President of Blessing Auto Repair in Philadelphia,

Pennsylvania. In May of 2019, Trooper Avdulla appeared at Guerrier’s business

intending to serve an arrest warrant upon Guerrier’s brother. The business was

closed at the time, but Trooper Avdulla noticed that a Maserati was “illegally

1 Although Guerrier alleged that he was deprived of due process in violation of the Fifth Amendment, we note that his claims are asserted against state defendants and thereby implicate the Fourteenth Amendment. U.S. Const., Amend. XIV (“No State shall . . . deprive any person of life, liberty, or property, without due process of law.”). We will simply refer to Guerrier’s Fifth Amendment claim as the due process claim. 2 The District Court exercised jurisdiction under 28 U.S.C. §§ 1331 and 1441(b). We have final order jurisdiction under 28 U.S.C. § 1291. 2 parked on the sidewalk” next to a handicap ramp. A72; see 75 Pa. Cons. Stat. §§

3352(c)(4); 3353(a)(1)(ii).

Trooper Avdulla contacted the PPA to tow the vehicle to one of its impound

lots. Although Guerrier tried to have the vehicle released that day by paying for

the towing and storage charges, he learned that a hold had been placed on it. On

May 10, 2019, after the hold was removed, the PPA sent notice to Guerrier at his

home address that the vehicle could be recovered. The notice advised that failure

to reclaim the vehicle within thirty days would result in the Maserati being sold at

auction. On June 5, the PPA sent another notice to Guerrier again at his home

address that the impounded Maserati could be recovered within fifteen days of the

notice or it would be sold at auction on June 29, 2019. By order dated June 10,

2019, the Philadelphia Court of Common Pleas directed both the sale at public

auction of various vehicles, including Guerrier’s Maserati, and publication in a

newspaper of a notice of the sale. On July 9, 2019, a court order directed to

Guerrier at his address stated that the Maserati had been sold at auction and that he

could claim any proceeds remaining within the following year.

Guerrier initially filed a complaint in state court alleging civil rights and

state law claims against the PSP, Trooper Avdulla, and the PPA. The PPA

removed the civil action to federal court and filed a motion to dismiss. Guerrier

filed an amended complaint, and the PPA filed another motion to dismiss for

3 failure to state a claim. The District Court granted that motion as to the Fourth

Amendment claim, concluding that Guerrier had not sufficiently pleaded how the

PPA was involved in the unreasonable seizure since the vehicle had been towed at

the direction of Trooper Avdulla. The due process claim was dismissed on the

ground that the PPA provided Guerrier with adequate notice and an opportunity to

be heard as to both the sale and the opportunity to claim any remaining proceeds.

The Eighth Amendment claim was dismissed for failure to plead with specificity

how the PPA had violated this right.

After discovery closed, the PSP and Trooper Avdulla filed a motion for

summary judgment. Guerrier conceded that the PSP was not amenable to suit as a

state agency. The District Court granted the motion as to Trooper Avdulla,

concluding that the seizure was not unreasonable given Avdulla’s belief that there

was probable cause that the Maserati was illegally parked on the sidewalk. The

Court dismissed the due process and excessive fines claims because there was no

evidence that Trooper Avdulla caused a deprivation of due process or that he was

involved in the sale of the Maserati. And, alternatively, the District Court reasoned

that Trooper Avdulla would be entitled to qualified immunity on his Fourth

Amendment and due process claims.

4 II.

On appeal, Guerrier takes issue with the District Court’s dismissal of the

claims against the PPA,3 as well as the grant of summary judgment in favor of

Trooper Avdulla.4 And in his argument concerning the PPA claims, Guerrier

contends that the District Court erred by failing to grant him leave to amend his

already amended complaint. He asserts that after the dismissal of his claims

against the PPA, he learned during discovery that the hold on his Maserati had

been lifted, but that the PPA had advised him during his several attempts to

retrieve the vehicle that it could not be released. He contends, therefore, that

“either the PPA or Trooper Avdulla violated Guerrier’s Fourth and Fifth

Amendment rights by improperly continuing the seizure through refusal to release

the vehicle to him prior to the sale.” Appellant’s Br. 36. With these arguments in

mind, we turn to whether Guerrier can prevail.

3 Guerrier does not take issue with the District Court’s dismissal of his Eighth Amendment claim against the PPA. It is therefore waived. See Laborers’ Int’l Union v. Foster Wheeler Energy Corp., 26 F.3d 375, 398 (3d Cir. 1994). 4 We exercise plenary review over a District Court’s order granting dismissal under Rule 12(b)(6). Mariotti v. Mariotti Bldg. Prods., Inc., 714 F.3d 761, 765 (3d Cir. 2013). We review for an abuse of discretion the decision to grant the dismissal with prejudice. U.S. ex rel. Zizic v. Q2Administrators, LLC, 728 F.3d 228, 234 (3d Cir. 2013). We also conduct plenary review of an order granting summary judgment. Const. Party of Pa. v. Cortes, 824 F.3d 386, 393 (3d Cir. 2016). 5 As to Guerrier’s Fourth Amendment claim against Trooper Avdulla,

Guerrier submits that summary judgment should not have been granted because the

Maserati was not parked on the sidewalk. He points out the differences in the

appearance of the concrete, the presence of an expansion joint in the concrete, the

asphalt of the Auto Repair’s lot, and a triangular area bordered by yellow curbing.

Taking these factors into account, Guerrier contends the District Court erred in its

conclusion that Trooper Avdulla reasonably believed that the Maserati was parked

on the sidewalk in violation of the Pennsylvania Vehicle Code.

We agree with the District Court that the photos and testimony of record

support “that Trooper Avdulla’s belief that [the Maserati] was in fact [on the]

sidewalk was reasonable.” A19. Because the vehicle’s presence on the sidewalk,

in whole or in part, constituted probable cause to remove it from the prohibited

area, we conclude that the seizure did not offend Guerrier’s rights under the Fourth

Amendment. See 75 Pa. Cons. Stat. §§ 3352(c)(4) and 3353(a)(1)(ii).

Nor are we persuaded that the District Court erred in granting summary

judgment in favor of Trooper Avdulla on Guerrier’s due process claim. There

appears to be no evidence of Trooper Avdulla’s involvement in the processing of

the sale, which caused Guerrier’s loss of the car. See Rode v. Dellarciprete, 845

F.2d 1195, 1207 (3d Cir. 1988). For this same reason, we will not disturb the grant

of summary judgment on the Eighth Amendment claim against Trooper Avdulla.

6 And we reject Guerrier’s contention that he should be permitted at this late

stage in these proceedings to pursue a claim for Trooper Avdulla’s interference

with the release of his Maserati from the PPA. Guerrier’s summary judgment

motion was filed after discovery closed. Yet Guerrier never sought to amend his

claim to allege a Fourth Amendment deprivation based on an improper

continuation of the seizure of the vehicle. “This court has consistently held that it

will not consider issues that are raised for the first time on appeal.” Harris v. City

of Philadelphia, 35 F.3d 840, 845 (3d Cir. 1994).

Nor will we disturb the District Court’s dismissal of the Fourth Amendment

and the due process claims against the PPA. Guerrier correctly recites the reasons

that the District Court granted the PPA’s motion to dismiss. Yet he fails to identify

any error committed by the District Court in granting that dismissal. Instead, he

contends that he should be granted leave to amend.

We disagree. The PPA had no direct involvement in the initial seizure of the

Maserati. Without some participation in the alleged unconstitutional conduct, PPA

cannot be held liable. Dellarciprete, 845 F.2d at 1207. Moreover, as the

allegations in Guerrier’s amended complaint and his arguments before the District

Court were focused on the initial seizure of the vehicle only, and not any improper

continuation of the seizure, we will not consider them for the first time on appeal.

Harris, 35 F.3d at 845.

7 There is no basis for reopening the due process claim. Even if the PPA

incorrectly advised that the vehicle could not be released, such an averment does

not negate the fact that notice of the impending sale was sent to Guerrier’s address

prior to the sale. He, therefore, had an opportunity to be heard and to raise the

alleged unlawful retention of his vehicle. “An elementary and fundamental

requirement of due process . . . is notice reasonably calculated, under all the

circumstances, to apprise interested parties of the pendency of the action and afford

them an opportunity to present their objections.” Mullane v. Cent. Hanover Bank

& Trust Co., 339 U.S. 306, 314 (1950) (emphasis added); see also Mathews v.

Eldridge, 424 U.S. 319, 333 (1976). Here, several notices of the sale were mailed

to Guerrier’s address after the “hold” was removed. He, therefore, was given an

opportunity to be heard on his claim about the improper retention of the vehicle

before it was sold. See Saukstelis v. City of Chicago, 932 F.2d 1171, 1173 (7th

Cir. 1991) (“Mail to the registered owner of the car, at the address in the state’s

files—an address the owner is supposed to keep current—is reasonably calculated

to produce actual knowledge.”). Accordingly, we conclude that Guerrier received

all the process to which he was entitled.

In sum, we will affirm.