2011 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

4-6-2011

Jason Collura v. City of Philadelphia

Precedential or Non-Precedential: Non-Precedential

Docket No. 10-3479

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Recommended Citation

"Jason Collura v. City of Philadelphia" (2011). 2011 Decisions. Paper 1489.

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NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 10-3479

___________

JASON COLLURA,

Appellant

v.

CITY OF PHILADELPHIA

____________________________________

On Appeal from the United States District Court

for the Eastern District of Pennsylvania

(D.C. Civil No. 08-cv-03880)

District Judge: Honorable Mary A. McLaughlin

____________________________________

Submitted Pursuant to Third Circuit LAR 34.1(a)

April 6, 2011

Before: BARRY, JORDAN and GARTH, Circuit Judges

(Opinion filed: April 6, 2011)

_________

OPINION

_________

PER CURIAM

Jason Collura appeals from a judgment entered in favor of the City of Philadelphia

(the City) following a non-jury civil trial in the United States District Court for the 

Eastern District of Pennsylvania. For the reasons that follow, the judgment will be 
2

affirmed.

I.

Collura first filed suit, under 42 U.S.C. § 1983, against the City in February 2008

(Civil Action 08-746), claiming that the Free Library of Philadelphia‟s Independence 

Branch maintained an unconstitutional policy of reserving certain tables at certain times 

for library patrons of East Asian ancestry. “Mr. Collura and the City ultimately agreed to 

a dismissal of the lawsuit in return for the entry of a consent order that the Free Library of 

Philadelphia may not prohibit any individual, at any time, from sitting at or utilizing any 

table or seating arrangement because of that individual‟s race or ethnicity.” DC Mem. 

Op., dkt #42, pg. 1 n.1.1 After Collura initiated Civil Action 08-746, Jennifer Chang, the 

manager of Independence Branch, learned that Collura had a prior criminal conviction for 

terroristic threats. On April 10, 2008, Chang drafted an internal memo stating that 

Collura should no longer be allowed access to Independence Branch.

In the morning hours of April 25, 2008, Collura bumped into Corey Dorsey, the 

municipal security guard at Independence Branch, on his way into the library. “Mr. 

Dorsey was aware of Mr. Collura‟s lawsuit and M[s]. Chang‟s April 10 memo before this 

incident.” Id. at pg. 4. The bumping incident was reported to the police, and later that 

day Collura‟s visiting privileges at Independence Branch were officially suspended for six

 

1

 Because a complete appendix was not prepared in this case, we will specifically 

refer to documents in the District Court record as needed.

 
3

months. The reasons given in the suspension notice were as follows: (1) “Staring at 

patrons using a computer”; (2) “Staring at staff”; and (3) “Pushing and striking the 

Municipal Guard upon entering the library.” Pl.‟s Comp., dkt #3, Ex. A. 

In August 2008, Collura again sued the City under § 1983, alleging that his 

expulsion from the Independence Branch was effectuated in retaliation for his filing and 

prosecution of Civil Action 08-746—activity protected by the First Amendment. Collura 

requested declaratory and injunctive relief, as well as a public apology. The City filed its 

answer, and the parties engaged in discovery and unsuccessful settlement negotiations. 

Judge McLaughlin conducted a bench trial on September 10, 2009, after which 

supplemental briefing was ordered on the issue of municipal liability.

By order entered August 9, 2010, the District Court directed that judgment be 

entered in favor of the City of Philadelphia, despite “serious concerns that the library 

employees took action against the plaintiff at least in part because of [Civil Action 08-

746].” DC Mem. Op., dkt #42, pg. 7. In reaching its verdict, the District Court

specifically ruled that a § 1983 claimant seeking only prospective, non-monetary relief 

against a municipal entity is subject to the requirements of Monell v. Dep‟t of Social 

Servs. New York City, 436 U.S. 658 (1978); in other words, such a claimant must show 

that his alleged constitutional injury “was the result of municipal custom, policy, or 

practice.” Fitzgerald v. Barnstable School Comm., 555 U.S. 246, --- , 129 S. Ct. 788, 797 

(2009). The District Court ruled that Collura had not shown by a preponderance of the 
4

evidence that the Independence Branch employees‟ conduct, “whether retaliatory or not, 

was pursuant to a custom or practice of the City.” DC Mem. Op., dkt #42, pg. 7. Collura 

timely appealed. 

II.

We have jurisdiction under 28 U.S.C. § 1291. “To the extent that the issues on 

appeal involve questions of law, we exercise de novo review. To the extent that the 

District Court made findings of fact, we review them for clear error.” Bear Mountain 

Orchards, Inc. v. Mich-Kim, Inc., 623 F.3d 163, 169 (3d Cir. 2010) (internal citation 

omitted). 

III.

The parties disagree whether the District Court erred in applying Monell to 

Collura‟s suit for prospective, non-monetary relief. We have not squarely addressed this

issue in a precedential opinion, but the Supreme Court has now spoken definitively and 

unanimously: “We conclude that Monell‟s holding applies to § 1983 claims against 

municipalities for prospective relief as well as to claims for damages.” Los Angeles 

County, Cal. v. Humphries, --- U.S. ---, 131 S. Ct. 447, 451 (2010).2 This was hardly 

groundbreaking news, for “as Monell explicitly stated, „[l]ocal governing bodies . . . can 

be sued directly under §1983 for monetary, declaratory, or injunctive relief where . . . the 

action that is alleged to be unconstitutional implements or executes‟ a policy or custom.” 
5

Id. at 452 (quoting Monell, 436 U.S. at 690) (emphasis in original). 

Given that Monell is applicable, we perceive no legal error in the District Court‟s 

conclusion that Collura failed to produce any evidence, let alone a preponderance of 

evidence, showing that his visiting privileges at Independence Branch were suspended 

pursuant to a City or Free Library policy or custom of doing so when a patron threatens or 

initiates civil litigation. See Andrews v. City of Philadelphia, 895 F.2d 1469, 1480 (3d 

Cir. 1990) (explaining that a government „policy‟ can be established “when a 

„decisionmaker possess[ing] final authority to establish municipal policy with respect to 

the action‟ issues an official proclamation, policy, or edict,” and that “[a] course of 

conduct is considered to be a „custom‟ when, though not authorized by law, „such 

practices of state officials [are] so permanent and well settled‟ as to virtually constitute 

law.” ) (internal citations omitted). In particular, there was no evidence showing that 

Chang was a “policymaker” under Pennsylvania law. Id. at 1481.

Accordingly, the judgment of the District Court will be affirmed. Collura‟s motion

to exceed Fed. R. App. P. 32(a)(7)(B)(ii)‟s type-volume limitation is granted.3

 

2 This appeal was stayed on October 29, 2010, pending the ruling in Humphries. 

3

 Collura attempts to raise a host of claims in his brief—including claims under 42 

U.S.C. § 1985(3), 42 U.S.C. § 2000a, and the Fourteenth Amendment‟s Due Process 

Clause—that were merely mentioned in passing in the complaint and were not argued 

before the District Court at trial. It is well established that, absent compelling or 

exceptional circumstances, this Court generally refuses to consider an argument or issue 

that a party has failed to raise in the District Court. See Gucci Am., Inc. v. Daffy‟s, Inc., 

354 F.3d 228, 233 n.3 (3d Cir. 2003). We follow that practice here.