BLD-029 NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 16-2463

___________

THOMAS M. BOLICK, II; EILEEN B. BOLICK,

Appellants

v.

NORTHEAST INDUSTRIAL SERVICES CORPORATION; WILLAM R WILLIAMS; 

JEFF KURTZ, Individually and d/b/a Jeffs Recycling; MOUNT CARMEL BOROUGH; 

BALLARD SPAHR LLP; DANIEL MCKENNA, Esq.; BALLARD SPAHR ANDREWS 

& INGERSOLL, LLP; DFS SERVICES, LLC, f/k/a Discover Financial Services; 

DISCOVERY BANK OF DELAWARE; NORTHUMBERLAND COUNTY; THE 

NEWS ITEM NORTH ROCK & COMMERCE STS; THE SCRANTON TIMES; 

TRIBUNE; JOHN DOES; JANE DOES 1 through 10; HONORABLE ROBERT B. 

SACAVAGE; EDWARD T. CUFF, Manager; JUDGE CHARLES H. SAYLOR

____________________________________

On Appeal from the United States District Court

for the Middle District of Pennsylvania

(D.C. Civil No. 4:14-cv-00409)

District Judge: Honorable Matthew W. Brann

____________________________________

Submitted for Possible Summary Action

Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6

October 27, 2016

Before: AMBRO, GREENAWAY, JR. and SCIRICA, Circuit Judges

(Opinion filed: November 17, 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.
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_________

PER CURIAM

Pro se appellants Thomas and Eileen Bolick pursued numerous state and federal 

claims in the District Court, eventually settling on a second amended complaint that 

raised thirty counts. That complaint cited numerous and disparate alleged factual 

predicates for relief, including the demolition of property that the Bolicks owned, a 

dispute arising out of their use of a Discover credit card, defamation by news 

publications, misconduct of a state-court judge, torts by municipal officials and 

employees, and a wide-ranging conspiracy and racketeering enterprise. Six groups of 

defendants filed separate motions to dismiss the second amended complaint. 

After the parties briefed those motions, the Magistrate Judge recommended that 

the District Court dismiss the complaint on two independent bases. First, the Magistrate 

Judge concluded that the second amended complaint did not comply with Federal Rules 

of Civil Procedure 8(a)(2) and 8(d)(1). Report and Recommendation, D. Ct. Doc. No. 

117 at 8. In particular, the Magistrate Judge stated that the Bolicks failed to “simply, 

concisely, and directly allege what their claims are, which facts support those claims, and 

which Defendants the claims are asserted against, leaving the Defendants to parse 

through the 95-page complaint and 29 pages of attached exhibits and ‘guess what of the 

many things discussed constituted [a specific cause of action against them].’” Id. at 9 

(quoting Binsack v. Lackawanna Cty. Prison, 438 F. App’x 158, 160 (3d Cir. 2011) (not 

precedential)). Second, the Magistrate Judge put forth her best effort to discern the 
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nature of each of the Bolicks’ claims, and set forth an independent reason for dismissal of 

those claims pursuant to Federal Rule of Civil Procedure 12(b)(6). After the Bolicks 

objected to the report and recommendation in multiple filings, the District Court adopted 

the Magistrate Judge’s analysis in full, granted the defendants’ motions to dismiss, and 

dismissed the Bolicks’ federal claims with prejudice. The District Court also followed 

the Magistrate Judge’s recommendation to dismiss the Bolicks’ state law claims without 

prejudice to refile them in state court. See 28 U.S.C. § 1367(c)(3). 

Thereafter, the Bolicks timely moved for reconsideration of the District Court’s 

dismissal order. The District Court denied the motion for reconsideration on the ground 

that the Bolicks sought only to re-litigate the dismissal ruling, and had not put forth any 

new evidence or shown that any manifest error of law or fact had occurred.

This appeal followed. On appeal, certain of the defendants moved for summary 

affirmance pursuant to Third Circuit Local Appellate Rule 27.4 and Third Circuit Internal 

Operating Procedure 10.6. The Bolicks then filed a response opposing affirmance and in 

support of their appeal.

We have jurisdiction pursuant to 28 U.S.C. § 1291. We exercise plenary review 

over a District Court’s decision to grant a Rule 12(b)(6) motion to dismiss, Fleisher v. 

Standard Ins. Co., 679 F.3d 116, 120 (3d Cir. 2012), but we review the District Court’s 

dismissal of a complaint for failure to comply with the requirements of Rule 8 for an

abuse of discretion, In re Westinghouse Sec. Litig., 90 F.3d 696, 702 (3d Cir. 1996). We 

review the District Court’s denial of a motion for reconsideration for an abuse of 
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discretion. Max’s Seafood Café ex rel. Lou-Ann, Inc. v. Quinteros, 176 F.3d 669, 673 

(3d Cir. 1999). “[I]n deciding a motion to dismiss, all well-pleaded allegations. . . must 

be taken as true and interpreted in the light most favorable to the plaintiffs, and all 

inferences must be drawn in favor of them.” McTernan v. City of York, 577 F.3d 521, 

526 (3d Cir. 2009) (quotation marks omitted). To withstand a Rule 12(b)(6) motion to 

dismiss, a complaint “must contain sufficient factual matter, accepted as true, to ‘state a 

claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) 

(quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). We construe the 

Bolicks’ pro se pleadings liberally, see Haines v. Kerner, 404 U.S. 519, 520 (1972), and 

we may affirm the District Court’s judgment on any basis supported by the record, see

Murray v. Bledsoe, 650 F.3d 246, 247 (3d Cir. 2011) (per curiam). Summary action is 

appropriate when, as here, the appeal presents no substantial question. 3d Cir. LAR 27.4; 

3d Cir. I.O.P. 10.6. 

The Bolicks’ claims here were prolix and vague; they were not “‘simple, concise, 

and direct.’” See Westinghouse Sec. Litig., 90 F.3d at 702 (quoting Rule 8(d)(1)). Nor 

did the complaint set out “a short and plain statement of [any] claim showing that the 

pleader is entitled to relief[.]” Fed. R. Civ. P. 8(a)(2); see also Glover v. FDIC, 698 F.3d 

139, 147 (3d Cir. 2012) (A complaint must “‘be presented with clarity sufficient to avoid 

requiring a district court or opposing party to forever sift through its pages in search’ of 

the nature of the plaintiff’s claim[.]”) (quoting Jennings v. Emry, 910 F.2d 1434, 1436 

(7th Cir. 1990)). As a result, the second amended complaint did not provide the 
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defendants with the requisite fair notice of the claims against them. For example, the 

complaint is too voluminous and unfocused to be intelligible as to which claims pertain to 

which defendants; indeed, the complaint nearly always refers throughout to the 

“defendants” as a whole without alleging which defendant or defendants performed 

which actions. As another example, the complaint names numerous parties and narrates 

various events that have no apparent connection to or among each other. Also, the 

complaint consists primarily of a lengthy factual narrative that is unconnected to any 

potential claim that the Bolicks wish to bring, combined with vague and conclusory 

assertions of liability. The complaint is rife with irrelevant facts that, even if accepted as 

true, do not satisfy the elements of any of the causes of action it attempts to raise. 

We will not affirm, however, solely on the basis of the Bolicks’ failure to comply 

with the requirements of Rule 8. Rather, we also consider the Magistrate Judge’s attempt 

to discern what claims the Bolicks intended to plead and we evaluate whether those 

claims were subject to dismissal under Rule 12(b)(6) for the failure to state a claim upon 

which relief could be granted. Based on our review of the second amended complaint, 

there is no substantial question that the District Court did not err when it granted the 

defendants’ motions to dismiss the second amended complaint, substantially for the 

reasons set out in the Magistrate Judge’s report and recommendation. 

As an initial point, the Bolicks have sued both a number of private individuals and 

entities and also numerous government officials and state entities. As pleaded, the 

Bolicks’ complaint fails categorically to state a claim against several of these parties. 
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The Bolicks, who pursued relief under 42 U.S.C. § 1983, were required to plead that the 

private individuals’ and entities’ conduct amounted to state action, but they failed to do 

so. See Mark v. Borough of Hatboro, 51 F.3d 1137, 1141 (3d Cir. 1995). And when 

naming individual government officials or employees, the Bolicks repeatedly failed to set 

out those parties’ personal involvement in the alleged violations, as § 1983 requires—

vicarious liability is not enough. See Evancho v. Fisher, 423 F.3d 347, 353 (3d Cir. 

2005). Relatedly, for claims brought against municipal entities, the Bolicks were 

required to plead that a municipal policy, custom, or practice led to the purported 

constitutional violations at issue, but they failed to plead facts sufficient to identify any 

such policy, custom, or practice. See Connick v. Thompson, 563 U.S. 51, 60-61 (2011). 

Finally, the claims against the judicial defendants for performance of their duties are 

barred by absolute judicial immunity. See Azubuko v. Royal, 443 F.3d 302, 303 (3d Cir. 

2006) (per curiam).

An additional problem dooms many of the claims brought against various parties 

in this case: the Bolicks have attempted to re-litigate matters that have already been 

decided in previous cases. As the Magistrate Judge explained, to the extent that the 

Bolicks have sued in federal court to complain of injuries brought about by prior state 

court judgments, the District Court had no jurisdiction to hear challenges to those 

judgments. See Great W. Mining & Mineral Co. v. Fox Rothschild LLP, 615 F.3d 159, 

166 (3d Cir. 2010) (setting out the parameters of the Rooker-Feldman doctrine). The 

Magistrate Judge also identified numerous prior cases in which the Bolicks did raise or 
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could have raised several of the claims that they have attempted to bring in this litigation. 

The Magistrate Judge was correct to conclude that res judicata bars those claims in this 

case. See Migra v. Warren City Sch. Dist. Bd. of Educ., 465 U.S. 75, 81-83 (1984); 

Nevada v. United States, 463 U.S. 110, 129-30 (1983) (“res judicata provides that when a 

final judgment has been entered on the merits of a case, ‘[i]t is a finality as to the claim or 

demand in controversy . . ., not only as to every matter which was offered and received to 

sustain or defeat the claim or demand, but as to any other admissible matter which might 

have been offered for that purpose’”) (citation omitted).

To the extent that the above-discussed categorical deficiencies arguably might not 

apply, we will comment briefly on the viability of certain of the Bolicks’ claims as 

additional grounds for affirmance. First, to the extent that the Bolicks could have raised 

claims concerning the demolition of their property against a proper defendant in federal 

court, those claims still fail. We agree with the Magistrate Judge that the Bolicks’ claims 

related to that demolition are unripe to the extent that they raise constitutional violations 

under the Takings Clause of the Fifth Amendment and the Due Process Clause of the 

Fourteenth Amendment. See Cowell v. Palmer Twp., 263 F.3d 286, 290 (3d Cir. 2001) 

(holding that “‘if a State provides an adequate procedure for seeking just compensation, 

the property owner cannot claim a violation of the [Takings] Clause until it has used the 

procedure and been denied just compensation.’”) (quoting Williamson Cty. Reg’l 

Planning Comm’n v. Hamilton Bank of Johnson City, 473 U.S. 172, 195 (1985)); Taylor 

Inv., Ltd., v. Upper Darby Twp., 983 F.2d 1285, 1292-94 (3d Cir. 1993). The Bolicks 
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did not plead facts sufficient to allege their use of procedures as set out in the Eminent 

Domain Code of Pennsylvania, so these claims were subject to dismissal as premature. 

Second, to the extent that the Bolicks have argued that any person or entity took 

action against them in retaliation for the exercise of their First Amendment rights, that 

argument fails. The Bolicks have not pleaded facts to sufficiently allege that any of their 

actions were causally connected to the adverse actions that they allegedly endured after 

exercising their right to free speech. See Rauser v. Horn, 241 F.3d 330, 333 (3d Cir. 

2001).

Third, the Bolicks’ antitrust claims fail. As the Magistrate Judge explained, 15 

U.S.C. § 35(a) bars the antitrust claims as pleaded here against the municipal entities. As 

for the antitrust claims against the law firm Ballard Spahr, their representation of their 

client Discover Card did not, as pleaded in the Bolicks’ complaint, amount to the kind of 

“sham litigation” that the antitrust laws can reach. See Prof’l Real Estate Inv’rs, Inc. v. 

Columbia Pictures Indus., Inc., 508 U.S. 49, 51, 56 (1993). 

Fourth, the Bolicks’ attempts to use the federal statutes barring civil conspiracies 

and racketeering to maintain their case in federal court all fail. Both the allegations of a 

wide-ranging conspiracy and also the allegations of a pattern of racketeering activity 

among the defendants are wholly conclusory. No specific fact is alleged that could 

establish a conspiracy or a racketeering enterprise. See Iqbal, 556 U.S. at 682.

For these reasons, there is no substantial question that the Bolicks’ second 

amended complaint failed to state a claim upon which relief could be granted. In 
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addition, we agree that providing the Bolicks leave to file a third amended complaint 

would have been futile, and the District Court did not abuse its discretion by dismissing 

their second amended complaint with prejudice. See Grayson v. Mayview State Hosp., 

293 F.3d 103, 108 (3d Cir. 2002). Furthermore, the Bolicks failed to show that their 

motion for reconsideration of the dismissal of their complaint was brought “to correct 

manifest errors of law or fact or to present newly discovered evidence.” Harsco Corp. v. 

Zlotnicki, 779 F.2d 906, 909 (3d Cir. 1985). It was therefore not an abuse of discretion 

for the District Court to deny that motion.

Consequently, we grant the motion to summarily affirm and will affirm the 

District Court’s judgment.