NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_____________

No. 14-1451

_____________

KEITH J. MITAN,

 Appellant

v.

UNITED STATES POSTAL INSPECTION SERVICE;

GEORGE P. CLARK, INDIVIDUALLY AND IN HIS

OFFICIAL CAPACITY OF POSTAL INSPECTOR 

_____________

On Appeal from the United States District Court

for the Eastern District of Pennsylvania

(D.C. No. 2-12-cv-06408)

District Judge: Hon. Nitza I. Quinones Alejandro

_____________

Submitted under Third Circuit LAR 34.1(a)

June 10, 2016

Before: CHAGARES, KRAUSE, and SCIRICA, Circuit Judges

(Filed: July 27, 2016)

_____________

OPINION∗

_____________

 ∗ This disposition is not an opinion of the full court and, pursuant to I.O.P. 5.7, 

does not constitute binding precedent.
2

CHAGARES, Circuit Judge.

In this action brought pursuant to Bivens v. Six Unknown Named Agents of 

Federal Bureau of Narcotics, 403 U.S. 388 (1971), plaintiff Keith Mitan alleges that 

defendant George Clark, a postal inspector for the United States Postal Inspection 

Service, violated his Fourth Amendment rights. The District Court dismissed the 

complaint and denied leave to amend. For the reasons explained herein, we will affirm in 

part (as to the dismissal) and reverse in part (as to the denial of leave to amend). 

I.

Because we write exclusively for the parties, we set forth only those facts 

necessary to our disposition. 

Plaintiff Keith Mitan (“Mitan”) alleges in his first amended complaint that in 2001 

his brother, Kenneth Mitan (“Kenneth”), acting as an agent of Mitan Estates, Inc. 

(“MEI”), entered into an agreement to purchase 3230 Reba Court, Bloomington, Indiana

(“the Real Estate”) from the Richard E. Deckard Family Limited Partnership (“the 

Partnership”). In May 2003, Kenneth filed a Chapter 11 bankruptcy petition. The 

Partnership filed an action in Indiana state court in January 2009, seeking forfeiture or 

foreclosure of the Real Estate. On September 17, 2009, the state court awarded “full 

legal and equitable title to the real estate and personal property therein” to the 

Partnership, even though the Partnership had never obtained relief from the automatic 

bankruptcy stay that was still in effect, had not asked the state court to award personal 

property, and had failed to name MEI as a defendant despite its interest in the Real 

Estate. Appendix (“App.”) vol. 2, 35, 56-57. 
3

On or about October 1, 2009, agents of the Partnership granted defendant George 

Clark of the United States Postal Inspection Service access to the Real Estate and the 

personal property therein, despite knowing that some of the personal property inside 

belonged to Mitan. Clark seized some of Mitan’s personal property, including materials 

that were subject to the attorney-client privilege. In November 2010, a state appeals 

court reversed the portion of the judgment that had awarded the personal property 

contained within the Real Estate to the Partnership, but the Government continued to 

retain Mitan’s personal property. 

Mitan alleges that Clark violated his Fourth Amendment rights by unreasonably 

seizing and retaining his personal property without a warrant.

1

 On November 22, 2013, 

the District Court dismissed the claim against Clark in his official capacity because of 

sovereign immunity. It dismissed the claim against Clark in his personal capacity 

because Mitan had no legal interest in the Real Estate and the Partnership had consented

to the entry and seizure; as such, no “clearly established constitutional right” had been 

violated.2

 App. vol. 1, 16-18. On December 24, 2013, the District Court denied Mitan’s 

motion for reconsideration. It also denied Mitan’s motion to amend his complaint a 

second time, finding that his proposed amendments were futile because they would not

correct the deficiencies of the first amended complaint. In the proposed second amended 

 1 The amended complaint contained additional counts and defendants, but Mitan is 

appealing only the single Fourth Amendment claim against Clark. 

2 Although the District Court did not expressly invoke the doctrine of qualified 

immunity, the “clearly established” language in its ruling is almost certainly a reference 

to qualified immunity, a defense that Clark argued before the District Court and thereby 

preserved for appeal. 
4

complaint, Mitan eliminated all references to the state court judgment, his brother’s 

bankruptcy, and the Partnership’s having granted Clark access to the Real Estate and 

personal property therein. He also added allegations that he “was legally authorized by 

MEI to keep his personal property inside the house located on the Real Estate” and that 

“Clark[’s] . . . conduct was malicious.” App. vol. 2, 95-96. Proceeding pro se (but being 

an attorney himself), Mitan timely filed this appeal on February 21, 2014. 

II.

The District Court exercised jurisdiction under 28 U.S.C. § 1331, and we have 

jurisdiction under 28 U.S.C. § 1291 to review the District Court’s final decision. “We 

review de novo a district court’s grant of a motion to dismiss for failure to state a claim 

under Federal Rule of Civil Procedure 12(b)(6)” and “are required to accept as true all 

allegations in the complaint and all reasonable inferences that can be drawn from them 

after construing them in the light most favorable to the nonmovant.” Foglia v. Renal 

Ventures Mgmt., LLC, 754 F.3d 153, 154 n.1 (3d Cir. 2014). A complaint must provide 

“more than labels and conclusions, and a formulaic recitation of the elements of a cause 

of action will not do.” In re Ins. Brokerage Antitrust Litig., 618 F.3d 300, 319 (3d Cir. 

2010). “The test . . . is whether the complaint alleges enough fact to state a claim to relief 

that is plausible on its face, which is to say, enough fact to raise a reasonable expectation 

that discovery will reveal evidence of illegality.” Id. (quotations marks and citation 

omitted). “[W]e review the District Court’s denial of leave to amend for abuse of 

discretion . . . .” U.S. ex rel. Schumann v. Astrazeneca Pharm. L.P., 769 F.3d 837, 849 

(3d Cir. 2014). “A district court would necessarily abuse its discretion if it based its 
5

ruling on an erroneous view of the law . . . .” Cooter & Gell v. Hartmarx Corp., 496 U.S. 

384, 405 (1990). 

III.

Mitan attacks the validity of the state court judgment in favor of the Partnership, 

contending that the state court lacked authority to award the Partnership title to his 

personal property because he was never a party to that suit, and that the state court 

judgment was void ab initio because of the automatic bankruptcy stay that was in place. 

He further argues that, even if the seizure of his personal property was lawful at the time

because of the state court judgment, the continued retention of his personal property 

became unlawful once the state appeals court reversed the judgment. And he maintains

that the ownership of the Real Estate is not dispositive because he would have had a 

legitimate expectation of privacy in the personal property inside the Real Estate 

regardless of who owned the Real Estate. Finally, he challenges the District Court’s 

finding that his attempt to amend the complaint a second time was futile.3

In response, Clark argues that the seizure was lawful because the owner (the 

Partnership) had given consent, or at least an officer in his position could reasonably have

 3 In a small portion of his brief, Mitan argues the District Court erred in granting 

Clark official immunity, as Bivens expressly authorizes suits against federal officers. If 

Mitan is under the impression that the District Court relied on the doctrine of official 

immunity to dismiss the Bivens action against Clark in his personal/individual capacity, 

Mitan has misread the District Court’s ruling. See App. vol. 1, 16 (“[A]ny claim against 

[Clark] in his official capacity is, therefore, dismissed.” (emphasis added)). If Mitan is 

under the impression that Bivens authorizes official-capacity suits, he is mistaken. 

Consejo de Desarrollo Economico de Mexicali, A.C. v. United States, 482 F.3d 1157, 

1173 (9th Cir. 2007) (“[A] Bivens action can be maintained against a defendant in his or 

her individual capacity only, and not in his or her official capacity.”).
6

believed so. Clark also contends that Mitan lacks Fourth Amendment standing to bring 

this lawsuit because Mitan had no reasonable expectation of privacy in the property. 

Clark separately addresses Mitan’s argument that the personal property was unlawfully 

retained even if it was lawfully seized initially. He argues that once property is lawfully 

seized, the Fourth Amendment is no longer implicated in a claim based on unlawful 

retention of that same property. And, according to Clark, even if the Fourth Amendment 

were implicated by unlawful retention of property, courts should not recognize a Bivens

action because Fed. R. Crim. P. 41(g) already provides a limited remedy. See Fed. R. 

Crim. P. 41(g) (“A person aggrieved by an unlawful search and seizure of property or by 

the deprivation of property may move for the property’s return . . . in the district where 

the property was seized.”). At the very least, Clark argues, it would not have been 

apparent to a reasonable officer in his position that retaining the personal property 

constituted a violation of Mitan’s Fourth Amendment rights. Lastly, Clark contends that 

Mitan has failed to show that the proposed amendments to the complaint would salvage 

his claim.

For the reasons set forth below, we conclude that the District Court properly 

dismissed the amended complaint but erred in concluding that the second round of 

proposed amendments was futile. 

A.

The District Court properly dismissed the complaint. It would not have been 

apparent to a reasonable officer in Clark’s position that his conduct was unlawful. 
7

“In the ordinary case, the [Supreme] Court has viewed a seizure of personal 

property as per se unreasonable within the meaning of the Fourth Amendment unless it is 

accomplished pursuant to a judicial warrant issued upon probable cause and particularly 

describing the items to be seized.” United States v. Place, 462 U.S. 696, 701 (1983); 

accord Brown v. Muhlenberg Twp., 269 F.3d 205, 209-10 (3d Cir. 2001). “Consent is an 

exception to the ‘requirements of both a warrant and probable cause.’” United States v. 

Stabile, 633 F.3d 219, 230 (3d Cir. 2011) (quoting Schneckloth v. Bustamonte, 412 U.S. 

218, 219 (1973)). The presence of consent is judged under a standard of objective 

reasonableness. Illinois v. Rodriguez, 497 U.S. 177, 188 (1990) (“[D]etermination of 

consent to enter must be judged against an objective standard: would the facts available 

to the officer at the moment warrant a man of reasonable caution in the belief that the 

consenting party had authority over the premises?” (ellipses and quotations marks

omitted)); United States v. Murray, --- F.3d ----, No. 15-2054, 2016 WL 1697082, at *3 

(3d Cir. Apr. 28, 2016) (“[T]he Fourth Amendment is not violated if the . . . officer’s 

entry is ‘based upon the consent of a third party whom the [officer], at the time of the 

entry, reasonably believe[s] to possess common authority over the premises, but who in 

fact does not do so.’” (quoting Rodriguez, 497 U.S. at 179)); see also Stabile, 633 F.3d at 

232 (stating that the analysis of whether a party could consent to the seizure of personal 

property “parallels the analysis of whether [the party] could consent to [a] search”). 

Here, the state court judgment expressly awarded “full legal and equitable title to 

the real estate and personal property therein” to the Partnership, and the Partnership gave 
8

its consent.

4

 App. vol. 2, 35, 57 (emphasis added). Even if the judgment was invalid, its 

existence made it objectively reasonable for Clark to believe that the Partnership had 

authority to consent to the entry and seizure.

We also agree with Clark that it was not clearly established that the Fourth 

Amendment prohibited the continued retention of the property after the state appeals 

court partially reversed the judgment. “The doctrine of qualified immunity shields 

officials from civil liability” unless “the violative nature of particular conduct is clearly 

established” — in other words, unless it can be said that “every reasonable official would 

have understood that what he [was] doing violate[d] [a] right.” Mullenix v. Luna, 136 S. 

Ct. 305, 308 (2015) (per curiam). “[E]xisting precedent must have placed the statutory or 

constitutional question beyond debate.” Id. 

We have held that “the scope of [a consented-to] search is limited by the terms of 

its authorization.” United States v. Kim, 27 F.3d 947, 956 (3d Cir. 1994) (quoting Walter 

v. United States, 447 U.S. 649, 656 (1980) (plurality)). And there is support for the

general proposition that “[w]ithdrawal of consent [may] be effectuated . . . by 

unequivocal act or statement.” United States v. McMullin, 576 F.3d 810, 815 (8th Cir. 

2009); see also, e.g., United States v. Alfaro, 935 F.2d 64, 67 (5th Cir. 1991). But Mitan 

has not cited, and we are not aware of, authoritative precedent specifically imposing a 

Fourth Amendment duty on officers to return property that was lawfully seized by 

 4 Because the state court judgment specifically awarded title to “personal property 

therein,” we have no occasion to address whether the Partnership’s ownership of the Real 

Estate, on its own, would have permitted Clark to conclude reasonably that the 

Partnership’s authority to consent extended to the personal property inside. 
9

consent when, months later, the consenter loses authority (or apparent authority) over the

property by virtue of an intervening court decision. As a result, we hold that Clark’s 

actions did not constitute a violation of Mitan’s clearly established Fourth Amendment

rights. 

B.

The proposed amendments to the complaint offered by Mitan were not futile, 

contrary to what the District Court held. Because the District Court’s decision to deny 

leave to amend was based on that erroneous conclusion, we must reverse the denial and 

remand with instructions to grant Mitan leave to file the proposed second amended 

complaint.

The proposed second amended complaint eliminates all references to the state 

court judgment, the bankruptcy, and the Partnership’s consent to the entry and seizure. If 

the proposed second amended complaint were adopted, then in assessing the sufficiency 

of the allegations, the District Court would have to ignore any unfavorable facts admitted 

by Mitan in the earlier complaints (although they could resurface at a later stage of 

litigation). W. Run Student Hous. Assocs., LLC v. Huntington Nat’l Bank, 712 F.3d 165, 

171-73 (3d Cir. 2013) (“[A]t the motion to dismiss stage, when the district court typically 

may not look outside the four corners of the amended complaint, the plaintiff cannot be 

bound by allegations in the superseded complaint.”). And if no consent was ever given, 

there would be no basis appearing in the complaint for Clark’s warrantless entry into the 
10

house and seizure of the property inside, even under the standards of objective 

reasonableness discussed above.

5

The existence of the state court judgment would remain judicially noticeable, S. 

Cross Overseas Agencies, Inc. v. Wah Kwong Shipping Grp. Ltd., 181 F.3d 410, 426 (3d 

Cir. 1999), but would not necessarily deprive Mitan of Fourth Amendment standing to 

challenge the initial seizure of the personal property. Mitan has standing to challenge the 

seizure if he held a possessory interest in the property at the time of the seizure.

6

 A state 

court judgment awarding ownership of Mitan’s personal property to the Partnership

would ordinarily preclude a finding that Mitan retained a possessory interest, but it is not 

clear in this case that the judgment was meant to, or even could, bind Mitan or his 

 5 We therefore need not resolve at this stage Clark’s argument that the 

unauthorized retention of property after a lawful seizure implicates the Fourth 

Amendment. Nor, given the lack of any allegation in the proposed second amended 

complaint regarding Kenneth’s criminal case, do we need to decide Clark’s argument that 

Federal Rule of Criminal Procedure 41(g) is a “special factor” counseling against the 

application of Bivens. 6 We note that the parties focus on whether Mitan had a legitimate/reasonable 

“expectation of privacy,” which is misplaced where the allegations pertain only to the 

unlawful seizure of property and not to any search of it. App. vol. 2, 40, 96; see United 

States v. Miller, 799 F.3d 1097, 1101-03 (D.C. Cir. 2015) (discussing this mismatch). 

The Fourth Amendment “protects two types of expectations, one involving ‘searches,’ 

the other ‘seizures.’” United States v. Jacobsen, 466 U.S. 109, 113 (1984). “A ‘search’

occurs when an expectation of privacy that society is prepared to consider reasonable is 

infringed.” Id. “A ‘seizure’ of property occurs when there is some meaningful 

interference with an individual’s possessory interests in that property.” Id. Although 

possessory interests and privacy interests are often related, the Supreme Court has 

rejected the notion that “the Fourth Amendment protects against unreasonable seizures of 

property only where privacy or liberty is also implicated.” Soldal v. Cook Cty., Ill., 506 

U.S. 56, 65 (1992). Rather, “seizures of property are subject to Fourth Amendment 

scrutiny even though no search within the meaning of the Amendment has taken place.” 

Id. at 68; see also Jacobsen, 466 U.S. at 113-18.
11

personal property housed at the Real Estate.

7

 The state court judgment names only 

Mitan’s brother, Kenneth,8 as a defendant, and it is not apparent from the proposed 

second amended complaint why the judgment would have bound Mitan or his property, 

nor has Clark advanced any theory as to why that would be. We therefore cannot 

conclude at the motion to dismiss stage that the state court judgment precludes Mitan 

from claiming to have held a possessory interest in the personal property notwithstanding 

the transfer of the Real Estate to the Partnership. See Rycoline Prods., Inc. v. C & W 

Unlimited, 109 F.3d 883, 886 (3d Cir. 1997). And if not conclusively established by the 

prior state court judgment, the extinction of Mitan’s possessory interest in the personal 

 7 “The preclusive effect of a state court judgment in a subsequent federal lawsuit is 

determined by the Full Faith and Credit Statute . . . .” Metro. Edison Co. v. Pa. Pub. Util. 

Comm’n, 767 F.3d 335, 350 (3d Cir. 2014). “If [a] court did not have jurisdiction over 

the subject matter or the relevant parties, full faith and credit need not be given.” 

Underwriters Nat’l Assurance Co. v. N.C. Life & Accident & Health Ins. Guar. Ass’n, 

455 U.S. 691, 705 (1982); see also W. Union Tel. Co. v. Pennsylvania, 368 U.S. 71, 75 

(1961) (“[A] state court judgment need not be given full faith and credit . . . as to parties 

or property not subject to the jurisdiction of the court that rendered it.”). 

8 We also question, but need not decide, whether the state court had authority to 

issue a judgment affecting property belonging to MEI (also not named as a defendant) or 

even Kenneth. At the time of the state court judgment (dated September 17, 2009),

Kenneth was a debtor in bankruptcy proceedings filed in the Central District of California 

on May 20, 2003, In re Kenneth M. Mitan, No. 2:03-bk-23582-AA (Bankr. C.D. Cal.), 

and then transferred to the Eastern District of Michigan on November 14, 2003, In re 

Kenneth M. Mitan, No. 03-71601-swr (E.D. Mich.), where a final decree was not entered 

until February 25, 2011. “Ordinarily, the filing of a bankruptcy petition imposes an 

automatic stay on all debt collection activities, including foreclosures.” In re Taylor, 655 

F.3d 274, 278 (3d Cir. 2011). “Absent relief from the stay, judicial actions and 

proceedings against the debtor are void ab initio.” Mar. Elec. Co. v. United Jersey Bank, 

959 F.2d 1194, 1206 (3d Cir. 1991). Clark offers no substantive response to Mitan’s 

argument about the automatic stay, and as far as we are aware, no relief from the stay was 

ever granted. 
12

property inside the house cannot be found within the allegations in the proposed second 

amended complaint.9

IV.

For the foregoing reasons, the judgment of the District Court will be affirmed in 

part and reversed in part. The case is remanded to the District Court with instructions to 

grant Mitan leave to file the proposed second amended complaint and for further 

proceedings as the District Court sees fit, which may include limited threshold discovery 

relevant to the issue of qualified immunity. See Fed. R. Civ. P. 26(b)(1); Crawford-El v. 

Britton, 523 U.S. 574, 599 (1998).

 9 Clark does not, for example, contend that Mitan had abandoned the personal 

property — which, in any event, would be difficult to argue. Mitan alleges that, prior to 

the state court judgment, MEI had given him permission to store his property in the house

on the Real Estate. Only two weeks (or slightly less, reading Mitan’s “on or about” 

language in his favor) elapsed between the September 17, 2009 judgment and when Clark 

seized Mitan’s personal property on or about October 1, 2009. It is unclear whether 

Mitan had any notice of the change in the Real Estate’s ownership during that period.