NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

____________

No. 12-4086

____________

A. J. ADAMS,

 Appellant 

v.

COUNTY OF ERIE, PENNSYLVANIA; MARK DIVECCHIO, individually and in his 

official capacity; 

TONY A. LOGUE, individually and in his official capacities; DAVID AGRESTI, 

individually and in his official capacity

____________

On Appeal from the United States District Court 

for the Western District of Pennsylvania

(W.D. Pa. No. 1-07-cv-00316)

District Judge: Sean J. McLaughlin

____________

Submitted Pursuant to Third Circuit LAR 34.1(a)

January 23, 2014

Before: FUENTES and FISHER, Circuit Judges, and STARK,* District Judge.

(Filed: February 18, 2014)

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OPINION OF THE COURT

____________

 

*

The Honorable Leonard P. Stark, District Judge for the United States District 

Court for the District of Delaware, sitting by designation.
2

FISHER, Circuit Judge.

Appellant A.J. Adams filed suit in the United States District Court for the Western 

District of Pennsylvania against Mark DiVecchio, Tony Logue, David Agresti, and the 

County of Erie (collectively, “Appellees”), alleging that he was terminated from his 

position as First Assistant Public Defender for Erie County as political retaliation in 

violation of the First Amendment. He appeals the District Court’s orders denying his pro 

se “Omnibus Motion for Relief” and granting Appellees’ motion for summary judgment. 

We will affirm.

I

We write principally for the parties, who are familiar with the factual context and 

legal history of this case. Therefore, we will set forth only those facts necessary to our 

analysis.

Adams was hired as a full-time Assistant Public Defender in Erie County, 

Pennsylvania, in 1987. He became First Assistant Public Defender in 1989, and served in 

that capacity until his termination on January 13, 2006. At all relevant times, Adams was 

a registered Democrat. In 2005, DiVecchio, also a Democrat, was elected Erie County 

Executive. Logue had been a part-time Assistant Public Defender for twelve years and 

became Chief Public Defender under the DiVecchio administration. Agresti is a 

registered Republican and an attorney in Erie County who supported DiVecchio’s 

campaign and later held a position in his administration.
3

In September and December 2005, Laurie Rogan, an investigator in the public 

defender’s office and Treasurer for one of DiVecchio’s fundraising committees, 

approached Adams and asked him to purchase tickets to fundraising events. Adams did 

so, writing a $50 check for admission to a breakfast event, and a $100 check for a ticket 

to DiVecchio’s inaugural ball. He did not attend either event. He has asserted in this 

litigation that he made those contributions under duress – that he was “maced,” which he 

defines as the practice of pressuring government employees to support a political 

campaign – but he concedes that he never objected to Rogan or to anyone else. He 

claims this was because he was nearing his twentieth anniversary as a county employee 

and did not want to risk the pension that would accompany such a milestone.

Following his victory in the general election, DiVecchio informed Logue of his 

intent to appoint him as Chief Public Defender for Erie County. Logue, in turn, intended 

to appoint Jim Pitonyak as his First Assistant, a move that would necessarily displace 

Adams. Logue and Pitonyak had worked together in the past and had a good working 

relationship. Logue has maintained, however, that he intended to keep Adams in the 

office, albeit at a lower position.

The record indicates that Logue did not seek advice from DiVecchio with respect 

to hiring decisions in the public defender’s office, and that DiVecchio delegated to Logue 

responsibility to “put together a team that [Logue] thought would accomplish the goals 

that [Logue] had for the office.” SA at 137. DiVecchio knew that Logue had Pitonyak in 
4

mind for the First Assistant position, but was unaware that Adams held that job. Logue 

claims to have spoken with Adams about his impending demotion in a hallway of the 

Erie County Courthouse sometime in December 2005, to which Adams responded with 

profanity and a declaration that he would never work for Logue, an outburst that Logue 

claims was the reason that Adams was fired. Adams denies that the conversation ever 

took place. On December 30, 2005, Adams received a letter signed by Logue and 

DiVecchio notifying him of his termination, effective January 13, 2006. 

Before taking office, DiVecchio formed a transition team with Agresti. The 

transition team was principally responsible for recommending individuals to fill the 

positions of County Solicitor, Personnel Director, and Finance Director. Agresti was not 

involved, however, in staffing the public defender’s office, and did not discuss positions 

in that office below the level of Chief Public Defender. DiVecchio later appointed 

Agresti to the position of assistant solicitor for the Erie County Office of Children and 

Youth. 

In an affidavit and subsequent deposition, Pennsylvania State Trooper Jim Brown 

claimed to have had a professional encounter with Agresti at some point in February or 

March 2006, during which he asked Agresti about the firing of Adams and another 

individual. Agresti allegedly responded: “[T]hose guys should have known better. You 

give $500.00 to each campaign and cover your bases.” SA at 48.
5

Adams filed suit in November 2007, and filed a fourth amended complaint on 

December 3, 2009. In the fourth amended complaint, Adams asserted a First Amendment 

political retaliation claim under 42 U.S.C. § 1983. Appellees moved for summary 

judgment, and the District Court heard argument on the motion on July 15, 2010.1 In a 

thorough and well-reasoned opinion, the District Court granted summary judgment to 

Appellees on Adams’s First Amendment retaliation claim. Shortly thereafter Adams 

filed a pro se “Omnibus Motion for Relief.” Adams’s counsel filed a motion to 

withdraw, which the District Court granted. The District Court then construed the 

 

1

In addition to his political retaliation claim, Adams brought a claim for 

deprivation of procedural due process as well as various state-law tort claims. At oral 

argument on Appellees’ motion for summary judgment, Adams’s then-attorney conceded 

that these claims could not survive summary judgment. These claims have not been 

preserved for appeal and, accordingly, are waived.
6

“Omnibus Motion” as a motion for relief from judgment, see Fed. R. Civ. P. 60(b), and 

denied it.

2

II

The District Court had jurisdiction pursuant to 28 U.S.C. §§ 1331 and 1343. We 

have jurisdiction pursuant to 28 U.S.C. § 1291. We review the District Court’s denial of 

Adams’s Rule 60(b) motion for an abuse of discretion. Ahmed, 297 F.3d at 209. Our 

review of the District Court’s order granting summary judgment is plenary, and we 

“apply[] the same standard that the court should have applied.” Howley v. Mellon Fin. 

Corp., 625 F.3d 788, 792 (3d Cir. 2010) (citing Smathers v. Multi-Tool, Inc./MultiPlastics, Inc. Emp. Health & Welfare Plan, 298 F.3d 191, 194 (3d Cir. 2002)). 

“Summary judgment is appropriate if, viewing the facts in the light most favorable to the 

 

2 Adams had also previously sought leave to amend his complaint to add a count 

under the Racketeer Influenced and Corrupt Organizations Act (“RICO”), but the District 

Court denied the motion for leave to amend in a September 23, 2009 memorandum and 

order. Although Adams devotes much of his brief to the existence of a supposed-RICO 

conspiracy amongst the defendants to corruptly operate the Erie County government, he 

did not identify the District Court’s September 23, 2009 order in his notice of appeal. See

SA at 224. Rather, with respect to his RICO theory, he has appealed only the District 

Court’s denial of his “Omnibus Motion,” which the Court construed as a Rule 60(b) 

motion. “[A]n appeal from denial of Rule 60(b) relief does not bring up the underlying 

judgment for review.” Browder v. Dir. Dep’t of Corrs. of Ill., 434 U.S. 257, 263 n.7 

(1978); see also Smith v. Evans, 853 F.2d 155, 158 n.1 (3d Cir. 1988). Thus, our review 

is constrained to whether the District Court abused its discretion in denying relief under 

Rule 60(b). Ahmed v. Dragovich, 297 F.3d 201, 209 (3d Cir. 2003). The District Court 

determined that Adams had failed to produce newly discovered evidence that would 

justify proceeding to trial on his RICO theory. We conclude that this determination was 

not an abuse of discretion.
7

non-moving party, there is no genuine issue of material fact and the moving party is 

entitled to judgment as a matter of law.” Id.; see also Fed. R. Civ. P. 56(c)(2).

III

Adams brought his political retaliation claim pursuant to 42 U.S.C. § 1983. For a 

claim under § 1983 to succeed, the plaintiff must prove (1) that the alleged injury was 

caused by a person acting under the color of state law; and (2) that the conduct deprived 

the plaintiff of a federally protected right. Nicini v. Morra, 212 F.3d 798, 806 (3d Cir. 

2000) (en banc). 

A public employee alleging discrimination on the basis of political affiliation must 

prove three elements: “‘(1) that the employee works for a public employer in a position 

that does not require a political affiliation, (2) that the employee maintained a political 

affiliation, and (3) that the employee’s political affiliation was a substantial or motivating 

factor in the adverse employment decision.’” Smith v. City of Allentown, 589 F.3d 684, 

692 (3d Cir. 2009) (quoting Hill v. Borough of Kutztown, 455 F.3d 225, 243 (3d Cir. 

2006)). Upon such a showing, the burden then shifts to the defendant to show “‘by a 

preponderance of the evidence that the same employment action would have been taken 

even in the absence of the protected activity.’” Id. at 692-93 (quoting Galli v. N.J. 

Meadowlands Comm’n, 490 F.3d 265, 271 (3d Cir. 2007)). 

The District Court assumed without deciding that Adams had satisfied the first two 

criteria – that he held a non-policymaking position, and that he had a protected political 
8

affiliation – but determined that he had failed to produce evidence showing a genuine 

dispute of material fact on the issue of causation. Adams challenges this conclusion.3 He 

asserts what he calls a “pay-to-play” theory: that those individuals who gave $500 or 

more to the DiVecchio campaign kept their jobs or were appointed to positions within the 

administration, and individuals such as he who contributed less or nothing at all were 

terminated or not hired. The District Court carefully considered the record evidence with 

respect to each defendant. We agree with its thoughtful analysis, noting only a few 

particularly relevant points.

With respect to Agresti, the District Court determined that he could not be held 

liable under § 1983 because at the time Adams was terminated, Agresti was not a state 

actor. We agree. Though he was working with the DiVecchio transition team, Agresti 

was not a public official; rather, he was in private practice with his family’s law firm. 

While it is true that private individuals can act under color of state law for purposes of 

§ 1983 when they “‘corruptly conspire’” with a state actor, Great Western Mining & 

Mineral Co. v. Fox Rothschild LLP, 615 F.3d 159, 176 (3d Cir. 2010) (quoting Dennis v. 

Sparks, 449 U.S. 24, 29 (1980)), there was no evidence of such a conspiracy here. 

Rather, the evidence showed that the decision to place Pitonyak in the First Assistant 

 

3 Appellees, while agreeing with the District Court’s ruling with respect to 

causation, argue in addition that Adams held a policymaking position. Because we agree 

with the District Court’s causation analysis, we see no need to address whether the First 

Assistant Public Defender position is one for which political affiliation is a relevant 

consideration.
9

position was made by Logue and approved by DiVecchio with no involvement by 

Agresti. Nor does Agresti’s alleged statement to Trooper Brown suffice to establish a 

material factual dispute that he had conspired with state officials in such a way as to 

make him liable under § 1983. Agresti did not credit the statements to DiVecchio, 

Logue, or any other state actor, nor did he suggest that he was involved in the hiring 

process for the public defender’s office, let alone that he conspired with others to impose 

a threshold donation amount that public employees must meet to retain their positions. 

Accordingly, the District Court did not err in granting summary judgment to Agresti.

While DiVecchio, on the other hand, clearly was a state actor for purposes of 

§ 1983, the evidence failed to create a genuine factual dispute that he had knowledge of 

Adams’s protected political activity (i.e., choosing to donate less than $500) and that this 

knowledge motivated him to terminate Adams. As the District Court noted, the 

uncontradicted evidence showed that DiVecchio delegated hiring in the public defender’s 

office to Logue. Although he was aware that Logue intended to hire Pitonyak, 

DiVecchio was unaware that Adams was the First Assistant. But more to the point is the 

fact that Pitonyak’s donations do not fit Adams’s putative pay-to-play scheme. While 

Pitonyak cumulatively gave DiVecchio’s campaign about $1,000 from 2005 to 2009, for 

Adams’s theory to hold up Pitonyak would have to have given $500 or more before his 

appointment (or perhaps shortly thereafter). To the contrary, Pitonyak gave $100 in 

September 2005 and $250 in December 2005. His combined $350 donation prior to 
10

being appointed to the First Deputy position thus places him in the same class of 

protected political activity as Adams. One cannot reasonably infer from this fact that 

Adams was fired based on the amount that he donated. Summary judgment for 

DiVecchio was thus appropriate.

With respect to Logue, the evidence was uncontroverted that Logue did not know 

about Adams’s non-support of DiVecchio, which Adams conceded he kept to himself. 

Indeed, Adams’s name appeared on a fundraising flier for the DiVecchio campaign, and 

Adams had twice donated money to support the campaign. Adams produced no evidence 

that Logue was motivated by the level of Adams’s support. Moreover, Logue had a 

longstanding professional relationship with Pitonyak and had made it clear that, if he 

were appointed Chief Public Defender, he wanted Pitonyak as his First Assistant. The 

District Court thus did not err in granting summary judgment to Logue.4

Finally, we note that while the County of Erie remains a party to this case and was 

named as a defendant in the political retaliation count, we find no argument in Adams’s 

briefs suggesting that the County is liable under § 1983 based on “‘a policy statement, 

 

4 We also note that the District Court did not abuse its discretion in denying 

Adams’s “Omnibus Motion,” construed as a motion under Rule 60(b), as it related to its 

grant of summary judgment. Relief under Rule 60(b) is an “extraordinary” remedy 

justified only by “special circumstances.” Moolenaar v. Gov’t of the Virgin Islands, 822 

F.2d 1342, 1346 (3d Cir. 1987) (quoting Page v. Schweiker, 786 F.2d 150, 158 (3d Cir. 

1986) (internal quotation marks omitted)). The District Court’s finding that Adams had 

failed to show the type of extraordinary circumstances justifying relief, such as the 

discovery of evidence not previously available, was well within its discretion. 
11

ordinance, regulation, or decision officially adopted and promulgated by that body’s 

officers.’” LaVerdure v. Cnty. of Montgomery, 324 F.3d 123, 125 (3d Cir. 2003) (quoting 

Monell v. Dep’t of Soc. Servs. of City of N.Y., 436 U.S. 658, 690 (1978)). We consider 

waived any challenge to the District Court’s grant of summary judgment to the County on 

that issue.

IV.

We find no error in the District Court’s careful analysis, and accordingly we will 

affirm.