2002 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

3-25-2002

Mullen v. Thompson

Precedential or Non-Precedential:

Docket 1-3158

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Recommended Citation

"Mullen v. Thompson" (2002). 2002 Decisions. Paper 200.

http://digitalcommons.law.villanova.edu/thirdcircuit_2002/200
 NOT PRECEDENTIAL

 UNITED STATES COURT OF APPEALS 

 FOR THE THIRD CIRCUIT 

 

 No. 01-3158 

 

 NOEL MULLEN, a minor; MICHAEL MULLEN; NAOMI MULLEN, his 

 wife, in their own right and as parents and legal guardians 

 of NOEL MULLEN; RICHARD ALEX, a minor; ROBERT ALEX, a minor; 

 JEROME ALEX; MARY ANN ALEX, his wife, in their own right and 

 as parents and legal guardians of RICHARD ALEX and ROBERT 

 ALEX, minors; LARA WALKER, a minor; MICHAEL WALKER, a 

 minor; LARRY WALKER; JEAN C. WALKER, his wife, in their own 

 right and as legal guardians of LARA WALKER and MICHAEL 

 WALKER, minors; ASHLEY MAIER, a minor; BRENDA MAIER, an 

 adult in her own right and as parent and legal guardian of 

 ASHLEY MAIER; ASHLEY LOWREY, a minor; RONALD LOWREY; WENDY 

 LOWREY, his wife, in their own rights and as parents and 

 legal guardians of ASHLEY LOWREY; CHRISTOPHER TAVORMINA, a 

 minor; KIM TAVORMINA, an adult in her own right and as 

 parent and legal guardian of CHRISTOPHER TAVORMINA; RONELL 

 MURRAY, a minor; MICHAEL MURRAY, SR., REVEREND, an adult in 

 his own right and as parent and legal guardian of RONELL 

 MURRAY, 

 

 Appellants 

 v. 

 JOHN W. THOMPSON, individually and as Superintendent of the 

 City of Pittsburgh School District and Secretary of the 

 Board of Directors of the City of Pittsburgh School 

 District; RICHARD R. FELLERS, individually and as Executive 

 Director of Business Affairs; ALEX MATTHEWS, individually 

 and as President and member of the Board of Public 

 Education; RANDALL TAYLOR, individually and as First Vice 

 President and member of the Board of Public Education; 

 EVELYN B. NEISER, individually and as Second Vice President 

 and member of the Board of Public Education; MARK A. 

 BRENTLEY, SR., individually and as a Member of the Board of 

 Education; JEAN FINK, individually and as a Member of the 

 Board of Education; DARLENE HARRIS, individually and as a 

 Member of the Board of Education; WILLIAM SCOTT ISLER, 

 individually and as a Member of the Board of Education; 

 MAGGIE SCHMIDT, individually and as a Member of the Board of 

 Education; JEAN E. WOOD, individually and as a Member of the 

 Board of Education; THE SCHOOL DISTRICT OF THE CITY OF 

 PITTSBURGH 

 

 
 On Appeal from the United States District Court 

 for the Western District of Pennsylvania 

 (D.C. Civil No. 01-cv-01087) 

 District Judge: Hon. Gary L. Lancaster 

 

 Submitted Under Third Circuit LAR 34.1(a) 

 March 7, 2002 

 

 Before: SCIRICA and COWEN, Circuit Judges, 

 RESTANI*, Judge, United States Court of International Trade 

 (Filed March 25, 2002) 

 _______________ 

 OPINION 

 _______________ 

 

*Honorable Jane A. Restani, Judge, United States Court of International 

Trade, sitting by 

designation. 

COWEN, Circuit Judge 

 In this case, Plaintiffs appeal from the dismissal of their various 

civil rights claims 

which arise out of the closing of numerous public schools in the City of 

Pittsburgh, 

Pennsylvania. Because there is no error in the District Court's 

determination that it did 

not have subject matter jurisdiction over these claims, we will affirm. 

 I. 

 Plaintiffs are nine students enrolled in the Pittsburgh public 

schools and their 

respective parents. Defendants are John Thompson, the Superintendent of 

the School 

District of the City of Pittsburgh, and members of the Pittsburgh Board of 

Education. 

Taking, as we must, the Plaintiffs allegations as true, the essential 

facts of this case are as 

follows. On November 10, 2000, a local Pittsburgh newspaper published a 

story about 24 

schools in the school district listed for closing. On November 14, 2000, 

the district 

officially announced plans to close eighteen schools. On November 30, 

2000, the School 

Board held a public meeting and allowed the public to address the fiscal 

year 2001 
budget. Although the meeting was advertised earlier in a newspaper of 

general 

circulation, the advertisement did not specifically mention the issue of 

school closings. 

Nonetheless, several of the Plaintiffs and others showed up at the meeting 

and voiced 

opinions in opposition to the closings. Members of the public were 

successful in 

preventing the closing of some schools, but Plaintiffs did not have the 

same success. 

 On December 20, 2000, the School Board cast a 5-4 vote to enact a 

budget for 

fiscal year 2001. The budget included the closings of eight different 

public schools. 

Thereafter, Plaintiffs filed the present action to enjoin the School Board 

from closing the 

schools. Plaintiffs' claims were grounded in the Civil Rights Act of 1871 

(42 U.S.C. 

1983) and asserted violations of the First Amendment right to petition the 

government for 

redress of grievances and the 14th Amendment's guarantee of due process of 

law. 

Defendants moved to dismiss the case pursuant to Federal Rule of Civil 

Procedure 

12(b)(1) for lack of subject matter jurisdiction. The District Court 

agreed with 

Defendants and dismissed the case for lack of subject matter jurisdiction, 

holding that the 

actions of the School Board did not run counter to the federal 

Constitution. This appeal 

followed. 

 II. 

 Plaintiffs contend that the School Board's decision to close the 

schools before the 

full time provided for in section 7-780 violates the First Amendment's 

language 

guaranteeing the right to petition the government for redress of 

grievances. More 

specifically, Plaintiffs assert that public pressure was successful in 

preventing the 

closings of some schools. Thus, had Plaintiffs had more time to speak 

out, they could 

have been successful as well. 

 We are sympathetic to the assertion that Plaintiffs apparently had 

less time than 

mandated by state law (under section 7-780) to voice opinions opposing the 

closings 

before those closings became final. Nevertheless, we are not persuaded 

that the alleged 

failure to comply with the purely procedural mechanism of section 7-780 

rises to the level 

of a First Amendment violation. Section 1983 is a critical method for 

vindicating the 
denial of federally guaranteed rights but that statute may not be invoked 

every time local 

officials allegedly act contrary to state or local procedural law. In our 

view, Plaintiffs' 

complaints are more properly left to the Pennsylvania state courts, which 

may take 

whatever action is permissible under state law to redress the fact that a 

state statute was 

not complied with by local officials. Indeed, the state courts of 

Pennsylvania have 

redressed violations of section 7-780 in the past. We express no opinion 

on how such 

state-level litigation should proceed or what ultimate result should be 

reached. 

 Plaintiffs also argue that the premature school closing decision 

violated their 14th 

Amendment due process rights. We are not convinced. The District Court 

correctly 

analyzed the substance of this issue and properly concluded that 

Plaintiffs have no 

constitutionally cognizable property or liberty interest in attending the 

individual school 

of their choice. See Mullen v. Thompson, 155 F. Supp.2d 448, 451-53 (W.D. 

Pa. 2001). 

While Pennsylvania law clearly guarantees an adequate free public 

education generally, 

the contours of that right are not nearly as specific as Plaintiffs here 

contend. If the 

Defendants had denied Plaintiffs access to any free public education, that 

would be a 

different matter. However, without a constitutionally recognized property 

or liberty 

interest, there is no need for further inquiry on the due process 

question. See, e.g., Paul v. 

Davis, 424 U.S. 693, 711-712 (1976). 

 III. 

 Even if all facts asserted by Plaintiffs are true, there is no 

potential for relief under 

the provisions of 42 U.S.C.  1983 since no violations of the federal 

Constitution have 

occurred. The District Court was correct to grant Defendants' Motion 

pursuant to Rule 

12(b)(1) and dismiss the cause of action for lack of subject matter 

jurisdiction. 

 For all of the foregoing reasons, the order of the District Court 

entered August 1, 

2001 will be affirmed. 

 

TO THE CLERK: 

 Please file the foregoing opinion. 

 /s/ Robert E. Cowen 

 United States Circuit Judge