2009 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

11-4-2009

Fera v. Baldwin

Precedential or Non-Precedential: Non-Precedential

Docket No. 07-4589

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Recommended Citation

"Fera v. Baldwin" (2009). 2009 Decisions. Paper 309.

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NOT PRECEDENTIAL

IN THE UNITED STATES COURT 

OF APPEALS

FOR THE THIRD CIRCUIT

 

NO. 07-4589

 

 NICHOLAS FERA, JR.

 Appellant

v.

BALDWIN BOROUGH, a municipality; JOHN

CONLEY, member of Council; DAVID DEPRETIS, 

member of Council; MICHAEL DUCKER, member

of Council; MICHAEL E. FETSKO, JR., member of

Council; JOHN FERRIS, JR., member of Council;

FRANCIS SCOTT, member of Council; CHRISTOPHER

T. KELLY, an individual and in his official capacity as

Chief of Police of Baldwin Police Department

 

On Appeal From the United States 

District Court

For the Western District of Pennsylvania 

(D.C. Civil Action No. 07-cv-00023)

District Judge: Hon. Arthur J. Schwab

 

Submitted Pursuant to Third Circuit LAR 34.1(a)

October 28, 2009

BEFORE: SMITH, FISHER and STAPLETON,

Circuit Judges

(Opinion Filed: November 4, 2009)

 
2

 

OPINION OF THE COURT

 

STAPLETON, Circuit Judge:

Nicholas Fera appeals from the District Court’s orders (1) granting summary

judgment in this 42 U.S.C. § 1983 action in favor of the Borough of Baldwin, Baldwin

Chief of Police Christopher Kelly, and Baldwin Council members John Conley, David

Depretis, Michael Ducker, Michael Fetsko, Jr., John Ferris, Jr., and Francis Scott, and 

(2) denying Fera’s motion for reconsideration. We will affirm the judgment of the

District Court.

I.

In November 2001, Appellant Nicholas Fera was elected to the Baldwin Borough

Council (“the Council”) in Pittsburgh. In October 2004, the Council and a few other

Borough officials held a budget workshop, during which they discussed, inter alia,

unlicensed gaming devices. One of the Council’s members noted that his barber told him

that Edward Albert, the owner of a local establishment called the “Haf Mart,” owned

seven gaming devices but had licenses for only four of these devices. Although the

Council discussed the possibility of investigating all proprietors who owned gaming

devices, it does not appear that the Council made any firm decisions at the workshop. 
3

The day after the workshop, Fera went to the Haf Mart, purportedly to buy a lottery

ticket. While he waited in line, he saw Albert and motioned him to the rear of the store. 

When the two of them gathered at the rear of the store, Fera whispered to Albert that he

should get the additional licenses for his gaming machines. According to Fera, he did not

tell Albert to hide the unlicensed gaming machines or warn Albert that the police might

be investigating him.

The next day, Baldwin Chief of Police Christopher Kelly called Fera and asked

him to come to the police station. When Fera arrived at the station, Chief Kelly explained

that a Haf Mart employee had reported that Fera had told Albert to hide the unlicensed

gaming devices. Chief Kelly noted that Fera might be subject to criminal liability for

hindering an investigation, and that there could be negative publicity against Fera and his

family. Chief Kelly then either told or advised Fera to resign from the Council. After

Fera refused, Chief Kelly asked him if he wanted to call anyone to discuss the matter. 

Fera asked Chief Kelly to call Sam McPherson, a former mayor of Baldwin Borough. At

the end of the phone call, McPherson advised Fera to resign. 

After the phone call, Chief Kelly allegedly told Fera that he had ten minutes to

make a decision and that, if he decided not to resign, Chief Kelly would have to prepare a

police report. Fera then agreed to resign. Chief Kelly volunteered to type the resignation

letter and asked Fera how he wanted the letter to read. Fera replied that he did not care

what it said, so Chief Kelly composed a letter stating that Fera was resigning due to “an
 Fera was running in that election in an attempt to win back his seat on the Council. 1

He ultimately lost the election.

4

unexpected family emergency.” Fera signed the letter upon its completion. Although

Chief Kelly did ultimately prepare a police report about the incident, no criminal charges

were ever brought against Fera.

At some point thereafter, Gale Dobson Miscush, the Borough’s Tax Collector,

allegedly disseminated a series of “letters” to the public that portrayed Fera in a negative

light by alluding to, inter alia, the incident at the Haf Mart. It appears that Fera tendered

only one of these “letters” to the District Court. That document, titled “The Truth &

Nothing But the Truth,” was published in the “Taxpayer Gazette” shortly before a local

election. This document stated in pertinent part: 1

Did you know the reason former Councilman Nick Fera

resigned from council was because he had taken information

from an executive council meeting & told a local business

owner that he was under investigation. He hindered a police

investigation, a criminal act, and violated the state ethics laws. 

Police reports are public information. His resignation &

police report were filed on 10/27/04.

In October 2006, Fera commenced the instant action in the Allegheny County

Court of Common Pleas against Baldwin Borough, the Baldwin Borough Police

Department, Chief Kelly, and Council members John Conley, David Depretis, Michael

Ducker, Michael Fetsko, Jr., John Ferris, Jr., and Francis Scott. In January 2007,

Defendants removed the case to the Western District of Pennsylvania. A few weeks later,
5

Fera filed an amended complaint, naming all of the original defendants except the

Baldwin Police Department. The amended complaint raised the following claims: (1) the

defendants unlawfully seized Fera at the police station and violated his due process and

equal protection rights; (2) the defendants engaged in a civil conspiracy in an attempt to

force Fera to resign from the Council; (3) the published material was defamatory and had

been provided to the author by the defendants; and (4) Fera was entitled to attorneys’ fees

and costs pursuant to 42 U.S.C. § 1988. 

After the close of discovery, the defendants moved for summary judgment. In

September 2007, the District Court granted these motions as to all of Fera’s claims. In

doing so, the court concluded that 

[c]onspicuously absent from [Fera’s] statement of facts are

any averments, let alone references to evidence of record, of

the manner in which any defendant somehow disseminated

any information to the citizen who defamed Plaintiff in a

series of public letters, any proof of any conspiracy or

agreement to support his conclusory allegations of conspiracy

and agreement to force him to resign, or that he was at any

time restrained or detained or otherwise had his freedom of

movement curtailed by Chief Kelly. 

(Sept. 20, 2007, Memorandum Opinion at 9.) Fera subsequently moved the court to alter

or amend that judgment. The court denied the motion with respect to Fera’s federal

claims, concluding that the motion “simply rehashes the arguments he previously made in

opposition to summary judgment . . . .” (Oct. 18, 2007, Memorandum Order at 3.) The

court granted the motion, however, as to Fera’s state law defamation claim, stating that it
6

“agree[d] with Plaintiff and deems it a more appropriate exercise of discretion to follow

its usual practice and decline to exercise its discretion to entertain the common law

defamation claim pursuant to its supplemental jurisdiction . . . .” (Id. at 4.) Accordingly,

the court remanded the defamation claim to the Allegheny County Court of Common

Pleas.

Fera initially pursued this appeal without representation. In February 2008, he

filed a pro se informal brief. Fera subsequently retained Arnold Y. Steinberg, Esquire,

who filed a reply brief on Fera’s behalf in May 2008. Fera’s opening brief argues (1) that

the District Court “did not have all of the facts,” and that he “was not represented right”

by counsel in the District Court proceeding; (2) that the defendants did not attend two

court-scheduled settlement conferences; and (3) that the District Court did not give him

enough time to conduct discovery.

Fera presents two additional arguments in his reply brief. Although somewhat

difficult to discern, it appears that his first argument is that the District Court erred in

granting summary judgment as to Fera’s due process claim because he sufficiently

demonstrated an injury to his reputation. The second argument is that the District Court

erred in granting summary judgment as to his Fourth Amendment claim because, contrary

to its conclusion, his encounter with Chief Kelly constituted an unlawful seizure.

II.

The preliminary task in this appeal is determining which issues are before this
7

Court. An appellant is “required to set forth the issues raised on appeal and to present an

argument in support of those issues in [his] opening brief.” Kost v. Kozakiewicz, 1 F.3d

176, 182 (3d Cir. 1993); see Fed. R. App. P. 28(a)(5), (9). Although “[i]t is well settled

that an appellant’s failure to identify or argue an issue in his opening brief constitutes

waiver of that issue on appeal,” United States v. Pelullo, 399 F.3d 197, 222 (3d Cir.

2005), this Court has not held in a precedential opinion that this rule applies with equal

force to pro se litigants. Other Courts of Appeals, however, have concluded that a pro se

litigant’s failure to raise an issue in his opening brief constitutes a waiver of that issue in

the absence of exceptional circumstances. See Timson v. Sampson, 518 F.3d 870, 874

(11th Cir. 2008) (per curiam ) (“While we read briefs filed by pro se litigants liberally,

issues not briefed on appeal by a pro se litigant are deemed abandoned. Moreover, we do

not address arguments raised for the first time in a pro se litigant’s reply brief.” (internal

citations omitted)); Anderson v. Hardman, 241 F.3d 544, 545 (7th Cir. 2001) (“Rule 28

applies equally to pro se litigants, and when a pro se litigant fails to comply with that rule,

we cannot fill the void by crafting arguments and performing the necessary legal research

. . . .”); Al-Ra’Id v. Ingle, 69 F.3d 28, 31 (5th Cir. 1995) (“An appellant’s brief must

contain an argument on the issues that are raised . . . . There is no exemption for pro se

litigants, though we construe their briefs liberally.”).

We agree with these courts that in fairness to the opposing side it is not asking too

much of pro se litigants to require at least an identification in the first brief of the issues
 A review of the docket suggests that both conferences took place, and there is no 2

indication that Appellees’ counsel were not present. Although it appears that Chief Kelly

himself did not attend either conference, he obtained permission from the court to be

excused from attending (the court required Chief Kelly to “be available” by telephone

during the second settlement conference).

8

they are asking the appeals court to resolve. Fera has tendered no satisfactory explanation

for his failure to identify his reply brief arguments in his opening brief, and we hold that

those arguments have been waived. Our ultimate conclusion would be no different,

however, if we held to the contrary. Both of those arguments are without merit.

III.

Fera’s opening brief does not identify any facts that were overlooked by the

District Court, let alone explain how such facts warrant a different outcome in this case.

As for the defendants’ alleged failure to attend the two settlement conferences, even if

this allegation is true, Fera does not indicate what relief he seeks or otherwise explain 2

how defendants’ failure to attend those conferences impacted the disposition of this case. 

Finally, Fera’s argument regarding his ability to conduct discovery is unpersuasive. 

This suit was originally filed in October 2006. In June 2007, Fera’s original attorney

successfully withdrew as counsel. On July 9, 2007, two weeks before the close of

discovery, Fera’s new attorney entered his appearance and filed an unopposed motion to

extend the discovery deadline by thirty days. The District Court denied the motion

without prejudice and held that the parties could file a renewed joint motion to extend the

discovery period so long as the proposed discovery deadline did not affect the August 17,
 Fera’s notice of appeal cryptically alleges that his attorney told him that they could 3

not “use” Chief Kelly’s deposition or the police report because those materials were

“beyond discoveries.” To the extent Fera is attempting to argue that the District Court

prevented him from using certain material obtained through discovery in his opposition to

Appellees’ summary judgment motions, such a claim is baseless.

9

2007, deadline for filing summary judgment motions. 

Although Fera never renewed his discovery motion, he now seems to claim that the

District Court did not give him enough time to conduct discovery. He does not indicate,

however, what additional discovery he intended to conduct or how that discovery might

have affected the disposition of his claims. Moreover, a review of the District Court

docket provides no indication that the parties had insufficient time to undertake discovery

or otherwise prepare for summary judgment. Accordingly, the District Court did not 3

abuse its discretion in overseeing the discovery in this case.

IV.

“[T]o make out a due process claim for deprivation of a liberty interest in

reputation, a plaintiff must show a stigma to his reputation plus deprivation of some

additional right or interest.” Hill v. Borough of Kutztown, 455 F.3d 225, 236 (3d Cir.

2006). A plaintiff satisfies the stigma prong of this test by showing that the allegedly

stigmatizing statements were made publicly and were false. Id.

Fera cannot satisfy the stigma prong, for he fails to demonstrate that any of the

Appellees made the public statements of which he complains. Although he contends that

the Borough’s Tax Collector, who is not a party to this suit, authored those statements, he
10

fails to establish that any of the Appellees facilitated the statements’ publication. 

Moreover, that the Borough’s Tax Collector may have published these statements does

not render the Borough susceptible to liability here, for Fera has not shown that the

allegedly stigmatizing statements reflected the Borough’s policy or custom. See Monell

v. Dep’t of Soc. Servs., 436 U.S. 658, 694 (1978) (concluding that a municipality’s

liability under 42 U.S.C. § 1983 for the acts or omissions of its employees or agents is

limited to circumstances where the execution of the municipality’s custom or policy

caused the constitutional violation). Accordingly, Fera’s first reply brief argument lacks

merit.

Turning to Fera’s second reply brief argument, “a person is ‘seized’ only when, by

means of physical force or a show of authority, his freedom of movement is restrained.” 

United States v. Mendenhall, 446 U.S. 544, 553 (1980). There is no seizure if “a

reasonable person would feel free to decline the officers’ requests or otherwise terminate

the encounter.” Florida v. Bostick, 501 U.S. 429, 436 (1991).

The District Court correctly concluded that Fera’s meeting with Chief Kelly did

not constitute a seizure. Fera reported to the police station voluntarily, and it does not

appear that, after Fera arrived at the station, the meeting evolved into a seizure. Fera does

not allege that Chief Kelly physically restrained him, flashed his weapon or made a

similar show of authority, or even raised his voice during the meeting. Granted, Fera

does allege that Chief Kelly gave him an ultimatum – resign or be named in a police
11

report. Yet this ultimatum, though asking Fera to make a difficult decision, did not

restrict his freedom of movement or otherwise prevent him from ending the meeting. 

Fera does not allege that Chief Kelly, either in words or actions, barred him from leaving

the station until he decided whether to resign. Indeed, there is no indication that Fera

could not have simply left the police station without responding to the ultimatum. In light

of all of the circumstances surrounding this meeting, it seems that a reasonable person in

Fera’s position would have felt free to end the encounter.

V.

The judgment of the District Court will be affirmed.