NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 13-3540

___________

GERHARD SWEETMAN,

Appellant

v.

BOROUGH OF NORRISTOWN, PA; COUNTY OF MONTGOMERY, PA; 

STATE OF PENNSYLVANIA; LANDLORD MICHAEL SIMON

____________________________________

On Appeal from the United States District Court

for the Eastern District of Pennsylvania

(D.C. Civil Action No. 2:11-cv-07404 )

District Judge: Honorable Mitchell S. Goldberg

____________________________________

Submitted Pursuant to Third Circuit LAR 34.1(a)

January 28, 2014

Before: AMBRO, SHWARTZ and SCIRICA, Circuit Judges

(Opinion filed: January 28, 2014)

___________

OPINION

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PER CURIAM

Gerhard Sweetman appeals pro se from the District Court’s order granting motions 

to dismiss filed in his civil rights case. Sweetman also challenges the District Court’s 

order denying his motion for reconsideration. We will affirm.
2

I.

In December 2011, Sweetman filed a pro se civil rights complaint in the District 

Court against Pennsylvania (the “Commonwealth”), Montgomery County, the Borough 

of Norristown, and Michael Shimon (Sweetman’s landlord). Sweetman appeared to 

assert that in December 2009, Norristown “code enforcement” officers attempted to gain 

entry to his apartment for an inspection.1 Sweetman asserted that this attempted entry 

violated his Fourth Amendment rights. He also asserted that the officers made terroristic 

threats which later caused him to have a heart attack, resulting in his hospitalization. 

Montgomery County, Norristown, and the Commonwealth each filed motions to 

dismiss. The District Court liberally construed the complaint to assert claims pursuant to 

42 U.S.C. § 1983 and Monell v. Dep't of Social Servs., 436 U.S. 658, 694 (1978), but it 

concluded that Sweetman’s complaint contained no viable claim. It concluded that the 

complaint failed to identify any Commonwealth or Montgomery County officials who 

were involved in the alleged constitutional violation. As to Norristown, the District 

Court concluded that Sweetman failed to allege facts that, if true, would establish a 

constitutional violation. The District Court also concluded that § 1983 would not permit 

recovery for an attempted warrantless search. 

 

1

Sweetman asserts for the first time on appeal that his door was opened during the 

attempted entry and that he had to forcibly shut it to prevent the entry of the code 

enforcement officers. We do not ordinarily consider allegations raised for the first time 

on appeal, and we will not do so here. See Fassett v. Delta Kappa Epsilon, 807 F.2d 

1150, 1165 (3d Cir. 1986). 
3

With the leave of the District Court, Sweetman filed an amended complaint. 

While more detailed, the amended complaint again asserted that the code enforcement 

officers violated his Fourth Amendment rights by “an attempted apartment invasion and 

attempted entry.” Sweetman provided few details of the alleged incident, noting only 

that it came “to the point of almost kicking the door in by Code Enforcement Officers . . . 

.”2 Sweetman alleged that the attempted entry occurred without his consent and without 

a valid search warrant. The Commonwealth, Montgomery County, and Norristown each 

filed new motions to dismiss, and the District Court, referencing the reasoning in its prior 

order, granted the motions and dismissed the amended complaint.3 

Sweetman filed a timely motion for reconsideration which did not address the 

District Court’s underlying reasoning. Rather, it requested that the District Court 

reconsider its ruling due to Sweetman’s expectation that pending responses to his 

interrogatories would provide “iron clad evidence of damages done from the incidents.” 

After the District Court entered an order denying the motion for reconsideration, 

Sweetman timely appealed. In January 2014, Sweetman filed a motion to enjoin the 

Federal Housing Authority from discontinuing his public housing voucher. 

 

2

Sweetman did not provide any other details concerning the attempted entry in his 

amended complaint.

3

The District Court also dismissed the claims asserted against Michael Shimon pursuant 

to 28 U.S.C. § 1915(e)(2)(B)(ii), on the grounds that Sweetman failed to establish a 

constitution violation or that Shimon was acting under color of state law. It appears that 

Shimon was never served with a copy of the complaint. 
4

II.

We first address the scope of our jurisdiction. Sweetman’s notice of appeal 

referenced only the District Court’s denial of reconsideration. However, the order 

dismissing Sweetman’s motion is clearly connected to the prior order dismissing his 

amended complaint, and Sweetman’s briefs in support of his appeal, liberally construed, 

make clear his intention to appeal the District Court’s prior order. Accordingly, we will 

construe Sweetman’s appeal as an appeal of both orders. See Wiest v. Lynch, 710 F.3d 

121, 127 (3d Cir. 2013).

 We exercise appellate jurisdiction pursuant to 28 U.S.C. § 1291. Our review of a 

District Court’s order granting a motion to dismiss is plenary. Fowler v. UPMC 

Shadyside, 578 F.3d 203, 206 (3d Cir. 2009). In conducting this review, we accept the 

truth of Sweetman’s factual allegations and draw reasonable inferences in his favor. See

Capogrosso v. Sup. Ct. of N.J., 588 F.3d 180, 184 (3d Cir. 2009) (per curiam). To 

survive a 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 

review the denial of Sweetman’s motion for reconsideration for abuse of discretion. See

Lazaridis v. Wehmer, 591 F.3d 666, 669 (3d Cir. 2010) (per curiam). 
5

III.

The District Court correctly granted the motions to dismiss. As the District Court 

concluded, Sweetman failed to allege that any officials from either the Commonwealth or

Montgomery County were involved in any attempted entry of his apartment. See Rode v. 

Dellarciprete, 845 F.2d 1195, 1207-08 (3d Cir. 1988). Thus, they were not viable 

defendants.4

As to Norristown, the District Court properly concluded that an attempted

violation of Sweetman’s Fourth Amendment rights is not remediable under § 1983, as no 

actual deprivation of his federally protected rights occurred.5 See Collins v. City of 

Harker Heights, Tex., 503 U.S. 115, 120 (1992) (“Section 1983 provides a remedy 

against ‘any person’ who, under color of state law, deprives another of rights protected by 

the Constitution”) (citing 42 U.S.C. § 1983); cf. Cnty. of Sacramento v. Lewis, 523 U.S. 

833, 845 n.7 (1998) (attempted seizures of person are beyond the scope of the Fourth 

Amendment); United States v. Valentine, 232 F.3d 350, 358 (3d Cir. 2000) (“[I]f the 

police make a show of authority and the suspect does not submit, there is no seizure.); see

also, e.g., Andree v. Ashland Cnty., 818 F.2d 1306, 1311 (7th Cir. 1987) (“[T]he mere 

 

4 We note that municipal code enforcement is administered by each municipality and not 

by the Commonwealth or county officials. See 35 Pa. Stat. Ann. § 7210.501; Com. v. 

Daugherty, 829 A.2d 1273, 1277 (Pa. Commw. Ct. 2003).

5

Sweetman asserted that the attempted entry into his apartment caused him to suffer a 

heart attack several weeks after the incident. Setting aside the question of whether an 

attempted entry is cognizable under § 1983, Sweetman has not plausibly alleged that the 

heart attack was a result of the interaction. See Iqbal, 556 U.S. at 678; Twombly, 550 

U.S. at 570. 
6

attempt to deprive a person of his [constitutional] rights is not, under usual 

circumstances, actionable under section 1983) (emphasis in the original). It may be that 

Sweetman thinks that the Norristown officials should be liable because they planned, 

wanted, or conspired to deprive him of his Fourth Amendment rights. If so, § 1983 does 

not provide a remedy. A § 1983 conspiracy claim is viable only if there has been an 

actual deprivation of a constitutional right. Andree v. Ashland Cnty., 818 F.2d 1306, 

1311 (7th Cir. 1987); see also Dixon v. City of Lawton, 898 F.2d 1443, 1449 (10th Cir. 

1990). Accordingly, as Sweetman did not submit to the inspection of his home and thus 

was not deprived of his Fourth Amendment right to be free of unreasonable searches, cf.

Lewis, 523 U.S. at 845 n.7(1998); Valentine, 232 F.3d at 358, he did not assert a 

remediable § 1983 conspiracy claim. See Andree, 818 F.2d at 1311.

Sweetman also asserted that he was threatened during the attempted entry. While 

he does not specify the exact nature of the threats, mere verbal threats do not provide the 

basis for a viable § 1983 claim. See Hopson v. Fredericksen, 961 F.2d 1374, 1378 (8th 

Cir. 1992). Sweetman also asserted the existence of a municipal policy that authorized 

code enforcement agents to attempt to enter his premises. However, as Sweetman has 

failed to state a claim pursuant to § 1983, he also failed to state a Monell claim. See

Monell, 436 U.S. at 694 (1978).

Finally, in seeking reconsideration, Sweetman implied that the District Court 

should have waited to dismiss his complaint until he had received responses to his 

interrogatories. However, it was not error for the District Court to dismiss Sweetman’s 
7

complaint under Rule 12(b)(6) when it did. See, e.g., McLean v. United States, 566 F.3d 

391, 399 (4th Cir. 2009) (noting that a purpose of Rule 12(b)(6) is dispensing with 

needless discovery). 

For these reasons, and in light of our overall examination of the record, we will 

affirm the judgment of the District Court. Sweetman’s motion for an injunction is 

denied.6

 

6

Sweetman seeks an injunction against the Federal Housing Authority to prevent the loss 

of his housing voucher. However, any claims Sweetman seeks to raise against nonparties to the instant action must be first raised in the District Court.