2012 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

4-3-2012

Jose Xenos v. Robert Corvino

Precedential or Non-Precedential: Non-Precedential

Docket No. 10-3063

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Recommended Citation

"Jose Xenos v. Robert Corvino" (2012). 2012 Decisions. Paper 1189.

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NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 10-3063

___________

JOSE FREMONDE XENOS, 

 Appellant

v.

ROBERT CORVINO, POSTAL CLERK AND SNITCH IN HIS PRIVATE AND 

MINISTERIAL CAPACITIES; TAMMY THOMAS, POSTAL SUPERVISOR IN 

HER PRIVATE AND MINISTERIAL CAPACITIES; JOE SARNOSINSKI, 

POSTAL SUPERINTENDENT IN HIS MINISTERIAL CAPACITY

____________________________________

On Appeal from the United States District Court

for the Eastern District of Pennsylvania

(D.C. Civil Action No. 08-cv-04846)

District Judge: Honorable James Knoll Gardner

____________________________________

Submitted Pursuant to Third Circuit LAR 34.1(a)

April 2, 2012

Before: SLOVITER, SMITH and GREENBERG, Circuit Judges

(Opinion filed: April 3, 2012)

___________

OPINION

___________

PER CURIAM

Jose Fremonde Xenos appeals from an order of the United States District 
2

Court for the Eastern District of Pennsylvania, which denied his motion for 

appointment of counsel and granted the Defendants’ motion to dismiss Xenos’ 

complaint. For the following reasons, we will affirm the District Court’s order.

I.

In his complaint, Xenos raised claims pursuant to 42 U.S.C. §§ 1983 and 

1985, and the Ninth Amendment to the United States Constitution. Xenos stated 

that he had previously filed a complaint against Robert Corvino, a postal 

employee. Xenos complained that after Corvino was served with the complaint, 

“Corvino began to discriminate against plaintiff when he would come to the post 

office for service by denying him service, acting in a hysterical and threatening 

manner and scream[ing] at Xenos . . . .” Xenos alleged he was denied service on 

September 9, 2008, and that he called Corvino’s supervisor, Tammy Thomas, who 

suggested that he might want to go to a different post office. When Xenos went 

back to the same post office on September 15, 2008, Corvino “began to act 

threatening and screaming that he was going to call the police.” Xenos called

Thomas again, who advised him not to go to that post office again. Xenos alleged 

that Corvino then filed a complaint with the Bethlehem police. Xenos also 

complained that postal superintendent Joe Sarnosinski was never available to take 

his calls and was derelict in his duty for allowing the discrimination. Xenos sought 

$1000/day in damages.
3

The Defendants filed a motion to dismiss under Fed. R. Civ. P. 12(b)(1) and 

12(b)(6), noting that Xenos had failed to identify any statutory or constitutional 

right that was violated by Corvino’s or Thomas’s actions. Soon thereafter, Xenos 

filed a motion for appointment of counsel. In an order entered May 4, 2010, the 

District Court, without mentioning the motion for appointment of counsel, directed 

Xenos to respond to the Defendants’ motion to dismiss by May 21, 2010.

On May 19, 2010, Xenos filed a response to the Court’s order, complaining 

that the Court should not have allowed Defendants to file the motion to dismiss out 

of time, and complaining that the judge was biased against civil rights plaintiffs. 

Xenos cited caselaw stating that filings by a pro se plaintiff should be construed 

liberally. He also noted that he had spent 90 days in a mental hospital, and thus he 

could not represent himself. He cited no other caselaw or arguments in opposition 

to the motion to dismiss. He also asked the Court to “take no further action until 

effective counsel has been assigned to this case.”

The District Court entered an order denying Xenos’ motion for appointment 

of counsel, and granting the motion to dismiss as unopposed, relying on Eastern 

District of Pennsylvania Local Rule 7.1(c). See E.D. Pa. R. 7.1(c) (“In the absence 

of a timely response, the motion may be granted as uncontested . . . .”). In a 

footnote, the Court stated that Xenos had failed to adequately brief his opposition 

to the motion to dismiss, and stated that his pro se status did not excuse him from 
4

responding to the arguments in the motion.

Xenos timely appealed. In his brief, he challenges only the District Court’s 

decision to deny him appointment of counsel.

II.

We have jurisdiction pursuant to 28 U.S.C. § 1291. We review the District 

Court=s dismissal under Rule 12(b)(6) de novo. See Phillips v. County of 

Allegheny, 515 F.3d 224, 230 (3d Cir. 2008). In doing so, we “accept all factual 

allegations as true, construe the complaint in the light most favorable to the 

plaintiff, and determine whether, under any reasonable reading of the complaint, 

the plaintiff may be entitled to relief.” Id. at 233 (citation and quotation omitted). 

The factual allegations in the complaint must be sufficient to “raise a right to relief 

above the speculative level.” Id. at 234 (quoting Bell Atlantic Corp. v. Twombly, 

550 U.S. 544, 555 (2007)). Pro se complaints, however, must be “liberally 

construed” and “held to less stringent standards than formal pleadings drafted by 

lawyers.” Erickson v. Pardus, 551 U.S. 89, 94 (2007) (citations and quotations 

omitted).

We recently affirmed an order of the District Court involving another 

complaint filed by Xenos. See Xenos v. Hawbecker, 441 F. App’x 128 (3d Cir. 

2011) (not precedential). In that case, the District Court had similarly denied 

Xenos’ motion for appointment of counsel and had granted the defendants’ motion 
5

to dismiss as unopposed because Xenos had failed to present a fully developed 

legal argument against dismissal. We noted that dismissal of Xenos’ complaint as 

“unopposed” was in essence “a sanction for failure to comply with the local court 

rule,” and that “such a sanction should not be invoked lightly when the plaintiff is 

pro se and the record evinces an intent to oppose dismissal, regardless of the 

plaintiff’s noncompliance with local procedure.” Xenos, 441 F. App’x at 131

(citing Stackhouse v. Mazurkiewicz, 951 F.2d 29, 30 (3d Cir. 1991)). We further 

noted that such a dismissal requires a district court to “analyze the relevant factors 

set forth in Poulis v. State Farm Fire & Casualty Co., 747 F.2d 863 (3d Cir.1984), 

before concluding that the sanction of dismissal is warranted.” 1

The District Court here did not provide an analysis pursuant to Poulis. 

Nevertheless, as with the previous case, we will affirm on alternative grounds 

because Xenos’ claims lack merit.

Xenos, 441 F. 

App’x at 131. 

2

 1 The six factors are: (1) the extent of the party’s personal responsibility; (2) 

prejudice to the adversary; (3) any history of dilatoriness; (4) whether the party 

acted willfully or in bad faith; (5) the availability of alternative sanctions; and (6) 

the merit of the claim or defense. Poulis, 747 F.2d at 868.

 Brightwell v. Lehman, 637 F.3d 187, 191 (3d 

2

 We recognize that technically, Xenos has only challenged the District Court’s 

decision to deny him appointment of counsel. However, because a decision about 

whether to appoint counsel is tethered to an analysis of whether the complaint has 

merit, and because we liberally construe his pro se brief to challenge the dismissal 

of his complaint, we proceed directly to a discussion of the merits of Xenos’ case. 
6

Cir. 2011) (“We may affirm a district court for any reason supported by the 

record.”). Xenos has not identified any constitutional or statutory right that was 

violated by the Defendants. It is not clear why he invoked the Ninth Amendment, 

but it is clear, in any event, that the Amendment does not extend to this mine-run 

fact pattern. Zeller v. Donegal Sch. Dist. Bd. of Educ., 517 F.2d 600, 605 n. 26 (3d 

Cir. 1975) (en banc). Xenos has not identified any statutory or constitutional right 

to use a particular post office. See United States Postal Serv. v. Council of 

Greenburgh Civic Ass’ns., 453 U.S. 114, 129 (1981) (First Amendment does not 

guarantee access to property simply because it is owned or controlled by 

government). As Appellees note, postal regulations allow the Postal Service to 

restrict a person’s use of the post office “by prohibiting the destruction of postal 

property, requiring patrons to comply with official signs, prohibiting disorderly 

conduct or conduct that obstructs a postal employee’s ability to perform his job 

duties, and prohibiting solicitation and advertisement activities. 39 C.F.R. 

§ 232.1(a)-(e), (h) (2006).” Appellees’ Brief at 15. Xenos was not restricted from 

using postal facilities, but was only denied service by a particular clerk on two 

occasions. Xenos has not explained how Corvino or Thomas violated any of his 

rights. 

 

See Tabron v. Grace, 6 F.3d 147, 155 (3d Cir. 1993) (in deciding whether to 

appoint counsel, court must determine, as a threshold matter, if claim has arguable 
7

Assuming that Xenos was attempting to raise a claim that Defendants 

retaliated against him for filing a lawsuit against Corvino, his claim fails. 

Accepting the allegations of the complaint as true, Corvino’s actions were not so 

egregious as to deter an ordinary person from exercising his First Amendment 

rights, and Thomas’s suggestions that Xenos use a different post office did not 

cause him any harm. See Thomas v. Independence Twp., 463 F.3d 285, 296 (3d 

Cir. 2006) (key question in determining whether cognizable First Amendment 

claim has been stated is whether alleged retaliatory conduct was sufficient to deter 

person of ordinary firmness from exercising First Amendment rights). We further 

agree with Appellees that to the extent Xenos raised claims against them in official 

capacities, such claims would be barred by sovereign immunity. United States v. 

Mitchell, 463 U.S. 206, 212 (1983). 

Because Xenos’ claims are without merit, the District Court properly denied 

his motion for appointment of counsel, and properly dismissed his complaint. For 

the foregoing reasons, we will affirm the District Court’s judgment.

 

merit in fact and law).