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. e du/thir dc ir c uit_1999/263Filed September 23, 1999

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 97-1944

WHITELAND WOODS, L.P., Appellant

v.

TOWNSHIP OF WEST WHITELAND;
WEST WHITELAND BOARD OF SUPERVISORS; WEST WHITELAND PLANNING COMMISSION; DIANE S. SNYDER; JERRY POLETTO; JACK C. NEWELL; KATHI HOLAHAN; NANCY CARVILLE; CARL DUSINBERRE

v.

JOHN D. SNYDER

On Appeal from the United States District Court for the Eastern District of Pennsylvania
D.C. Civil Action No. 96-cv-08086 (Honorable Norma L. Shapiro)

Argued June 5, 1998 Before: SCIRICA, NYGAARD and SEITZ,* Circuit Judges

Reargued December 4, 1998 Before: SCIRICA, NYGAARD and ROSENN, Circuit Judges

(Filed: September 23, 1999)

___________________________________________________ ______________

*The Honorable Collins J. Seitz was a member of the original panel but
died before the matter was decided.THOMAS A. RILEY, JR., ESQUIRE

(ARGUED 6/5/98 and 12/4/98) Riley, Riper, Hollin & Colagreco 240 Daylesford Plaza

P.O. Box 568 Paoli, Pennsylvania 19301

Attorney for Appellant

THOMAS X. McANDREW, JR.,
ESQUIRE Siana & Vaughan
961 Pottstown Pike

P.O. Box 630 Exton, Pennsylvania 19341

JEFFREY R. BALDYGA, ESQUIRE (ARGUED 6/5/98)** Siana, Shields & Vaughan
961 Pottstown Pike

P.O. Box 630 Exton, Pennsylvania 19341

Attorneys for Appellees, Township of West Whiteland;
West Whiteland Board of Supervisors; West Whiteland Planning Commission; Diane S. Snyder; Jerry Poletto; Jack C. Newell; Kathi Holahan; Nancy Carville; Carl Dusinberre

___________________________________________________ ______________

**Jeffrey R. Baldyga, Esquire, subsequently withdre w his appearance on behalf of Appellees, Township of West Whiteland, et al.

2GEOFFREY C. JARVIS, ESQUIRE

(ARGUED 12/4/98)
RICHARD A. SPRAGUE, ESQUIRE Sprague & Sprague Wellington Building, Suite 400

135 South 19th Street Philadelphia, Pennsylvania 19103

GUY A. DONATELLI, ESQUIRE Lamb, Windle & McErlane

24 East Market Street

P.O. Box 565 West Chester, Pennsylvania 19381-

0565

Attorneys for Appellee, John D. Snyder

OPINION OF THE COURT

SCIRICA, Circuit Judge.

In this civil rights action, real estate developer Whiteland Woods, L.P., a subsidiary of Toll Brothers, asserts that its First and Fourteenth Amendment rights were violated by a township's refusal to allow videotaping of a meetin g of the Township Planning Commission. In a parallel state c ourt action, the township acknowledged that Pennsylvania 's Sunshine Act, 65 Pa. Stat. Ann. SS 271-86 (West Sup p. 1998), requires the township to allow videotaping o f Planning Commission proceedings and agreed not to enforce the ban at future meetings. Whiteland Woods then filed this lawsuit under 42 U.S.C.A. S 1983 (West 1 994) seeking monetary damages and attorney's fees. The D istrict Court granted defendants' motion for summary judgme nt.
We will affirm.

I

On June 24, 1996, Whiteland Woods filed a tentative application with West Whiteland Township, Chester County, to build a residential community on a 162.5 -acre

3parcel in the township. The application was placed on the

agenda for the September 25, 1996 meeting of the We st Whiteland Planning Commission.

At the September 25 meeting, attorney Thomas A. Ril ey presented Whiteland Woods' application to the Plann ing Commission. Whiteland Woods had arranged for a vide o camera operator to attend the meeting and record th e proceedings. Apparently in response to this videota ping, Township Solicitor John D. Snyder stated early in t he meeting that he intended to discuss rules governing videotaping, but that any changes to the rules woul d apply only to future meetings. During the meeting, Snyder prepared a resolution barring the use of all video cameras at future Planning Commission meetings. The resolut ion provided in part: "The following rules shall govern the use of mechanical/electrical recording and/or stenograp hic devices during public meetings: . . . (5) No video taping or video recording and no additional lighting shall be employed."

Jack Newell, president of the Planning Commission, placed Snyder's resolution on the agenda and Snyder presented it at the end of the meeting. Members of the Planning Commission discussed the proposed resoluti on, with participation by Riley and Michael Greenberg, vice president of Toll Brothers. Newell explained that h e believed videotaping would inhibit candid discussion by town ship residents. Other members of the Planning Commission expressed resentment at being videotaped and stated that videotaping could be intimidating. Greenberg, on th e other hand, said he wanted a video record of all proceedi ngs and Riley informed the Commission that he believed allo wing videotaping was required by Pennsylvania's Sunshine Act. Nevertheless, the Planning Commission adopted the resolution banning videotaping by a vote of four to two. The Planning Commission did not prevent Whiteland Woods from videotaping the September 25 meeting.

On October 4, 1996, counsel for Whiteland Woods sen t the Planning Commission written notification of Whi teland Woods' intention to videotape a meeting scheduled f or October 9, 1996. On October 8, 1996, Snyder wrote informing Whiteland Woods that the Township would n ot

4permit videotaping and stating, "Under the circumst ances,

if you decide to undertake the effort and expense o f bringing video cameras and videotaping equipment to the meeting you must do so at your own risk . . . ." Th e same day, the township's Board of Supervisors, following the lead of the Planning Commission, enacted Resolution 96-1 0 banning the use of video recording devices at meeti ngs of the Board of Supervisors. Resolution 96-10 provided in part: "The following regulations shall govern the u se of electrical/mechanical recording equipment during pu blic meetings of the Board: . . . (c) Only audio recordi ng or stenographic recording equipment may be used i.e. n o video recording equipment shall be permitted . . . ."

Representatives of Whiteland Woods brought video recording equipment to the Planning Commission's Oc tober 9, 1996 meeting, but Officer John Curran of the Wes t Whiteland Township Police Department informed White land Woods' representatives they could not make a video recording of the meeting. Accordingly, Whiteland Wo ods left the camera facing the wall and made no videotape of the meeting.

On October 14, 1996, Whiteland Woods filed suit in the Court of Common Pleas of Chester County, seeking injunctive relief and relief under the Pennsylvania Declaratory Judgments Act, 42 Pa. Cons. Stat. Ann. S 7531-41 (West 1998), for violating the Sunshine A ct, 65 Pa. Stat. Ann. S 271-86. Whiteland Woods also sough t a preliminary injunction barring the Township from en forcing the two resolutions. On October 16, 1996, the Towns hip, through counsel, wrote to the Court of Common Pleas conceding the Township could not enforce either res olution, citing Hain v. Board of Sch. Directors, 641 A.2d 66 1, 663-64 (Pa. Commw. Ct. 1994) (holding that the Sunshine Ac t requires Pennsylvania government agencies to permit videotaping of their meetings). The Township defend ants waived their right to a hearing on the preliminary injunction and the Court of Common Pleas on October 17 enjoined the Township from enforcing or attempting to enforce the two resolutions or any other resolution s prohibiting the videotaping of public meetings. The Board of Supervisors and Planning Commission complied with t he

5injunction and did not try to enforce the resolutio ns. In

fact, Whiteland Woods has videotaped every Board of Supervisors meeting since October 22, 1996.

Whiteland Woods then sought additional relief, fili ng a suit in the Court of Common Pleas for Chester Count y on November 13, 1996 for alleged violations of the Fir st and Fourteenth Amendments under 42 U.S.C.A. S 1983 (Wes t 1994), the Pennsylvania Constitution, and Pennsylva nia's Sunshine Act. The complaint sought damages in exces s of $2,100,000 and attorney's fees.1 The Township remov ed the case to federal court and filed a third-party compl aint against Snyder, alleging that he advised the Commis sion that it legally could adopt the resolution barring videotaping. The Planning Commission rescinded its resolution on December 11, 1996; the Board of Super visors rescinded Resolution 96-10 on December 18, 1996.

The District Court granted summary judgment on beha lf of the Township defendants on the S 1983 claims. Th e court
held the ban was not a violation of the First Amend ment because it was a reasonable time, place, and manner
restriction and dismissed the Fourteenth Amendment claim because the Township's conduct did not constitute a substantive due process violation. The court also determined that plaintiff 's request for injunctive relief was moot. After disposing of the federal claims, the Di strict Court declined to exercise supplemental jurisdictio n over plaintiff 's state law claims or the Township's cla im against Snyder. See Whiteland Woods v. Township of West Whiteland, No. 96-CV-8086, 1997 WL 653906, at *4-*8 (E.D. Pa. Oct. 21, 1997).

II

The District Court had federal question jurisdictio n under 28 U.S.C. S 1331. We have jurisdiction under 28 U.S .C. S 1291. We exercise plenary review of a grant of su mmary

___________________________________________________ ______________

1. Initially, Whiteland Woods also sought relief ba sed on the failure of

the Board of Supervisors and Planning Commission to res cind promptly the unenforceable resolutions. The District Court rejec ted that theory and Whiteland Woods does not press it on appeal.

6judgment. See Wicker v. Consolidated Rail Corp. , 1 42 F.3d

690, 696 (3d Cir. 1998). We view all evidence and d raw all inferences therefrom in the light most favorable to the nonmoving party and grant summary judgment if no reasonable jury could find for the non-moving party . See Sameric Corp v. City of Philadelphia, 142 F.3d 582, 590 (3d Cir. 1998).

III

A

The primary issue on appeal is whether there is a f ederal constitutional right to videotape public meetings o f a township planning commission when other effective m eans of recording the proceedings are available. "It is now well established that the Constitution protects the righ t to receive information and ideas." Stanley v. Georgia, 394 U.S. 557, 564 (1969). Because a "major purpose of[the Fi rst] Amendment was to protect the free discussion of governmental affairs," Globe Newspaper v. Superior Ct., 457 U.S. 596, 604 (1982) (internal quotation marks omit ted), the public and press have the right to attend certa in types of governmental proceedings. See, e.g., id. at 603 (criminal trials); Publicker Indus., Inc. v. Cohen, 733 F.2d 1059, 1067-1070 (3d Cir. 1984) (civil trials).

We have no hesitation in holding Whiteland Woods ha d a constitutional right of access to the Planning Comm ission meeting on October 9, 1996. Whether the public has a First Amendment right of access to a particular governmen t proceeding depends on "two complementary considerations." Capital Cities Media, Inc. v. Ches ter, 797 F.2d 1164, 1174 (3d Cir. 1986). First, "because a t radition of accessibility implies the favorable judgment of experience," we must consider "whether the place an d process has historically been open to the press and general public." Id. (quoting Press-Enterprise Co. v. Super ior Court, 478 U.S. 1, 8 (1986)) (internal quotation marks omi tted). Second, we evaluate "whether public access plays a significant positive role in the functioning of the particular process in question." Id. In the context of judicia l

7proceedings, we have identified six factors pertine nt to the

application of the second prong:

[1] promotion of informed discussion of gove rnmental affairs by providing the public with the mor e complete understanding of the judicial system; [2] pr omotion of the public perception of fairness which can be achieved only by permitting full public view of the p roceedings; [3] providing a significant community therap eutic value as an outlet for community concern, hostilit y and emotion; [4] serving as a check on corrupt p ractices by exposing the judicial process to public scru tiny;[5] enhancement of the performance of all involv ed; and[6] discouragement of perjury."

United States v. Simone, 14 F.3d 833, 839 (3d Cir. 1993) (bracketed numbers in original).

Public access to Township Planning Commission Meetings is guaranteed by the Pennsylvania Municipa lities Planning Code of 1968 S 209(10), 53 Pa. Stat. Ann. S 10209(10) (West 1998), and by the Sunshine Act of 1986, 53 Pa. Stat. Ann. SS 271-86, see Moore v. Township of Raccoon, 625 A.2d 737, 740 (Pa. Commw. Ct. 1993). Although the Planning Commission serves in an advis ory capacity only, see Heck v. Zoning Hearing Bd. , 397 A.2d 15, 19 (Pa. Commw. Ct. 1979), "[t]he General Assembly .

. . intended that planning commissions play an active r ole in all aspects of municipal development and land use." Moore,
625 A.2d at 739. Public access to the Commission's meetings complies with the standards set forth in C apital
Cities and advances the interests identified in Sim one. Public awareness of land use matters and the percep tion of fairness are fostered by the presence of affected m embers of the township at Commission meetings. Participants i n these meetings, whether members of the Commission or witnesses providing testimony, are put on notice th at their actions will be evaluated by the community. Consequ ently, we believe the Planning Commission meetings are pre cisely the type of public proceeding to which the First Am endment guarantees a public right of access.

But the public's right of access is not absolute. I n holding that a criminal trial may not be completely closed to the public, the Supreme Court emphasized,

8[O]ur holding today does not mean that the F irst

Amendment rights of the public and represent atives of the press are absolute. Just as a government may impose reasonable time, place, and manner re strictions upon the use of its streets in the interest of such objectives as the free flow of traffic, so m ay a trial judge, in the interest of the fair administr ation of justice, impose reasonable limitations on ac cess to a trial. "[T]he question in a particular case is whether that control is exerted so as not to deny or unwarrantedly abridge . . . the opportunitie s for the communication of thought and the discussion of public questions immemorially associated with resor t to public places."

Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555 , 581 n.18 (1980) (plurality opinion) (quoting Cox v. New Hampshire, 312 U.S. 569, 574 (1941)) (citations omi tted); see also id. at 600 (Brennan, J., concurring); Glob e Newspaper, 457 U.S. at 607 n.17. The Supreme Court also
found no constitutional violation in the denial of a press request for access to county jail facilities for th e purpose of investigating conditions in the jail, noting it had "never intimated a First Amendment guarantee of a right of access to all sources of information within government con trol" and that the "undoubted right to gather news . . . affords
no basis for the claim that the First Amendment com pels others--private persons or governments--to supply information." Houchins v. KQED, Inc., 438 U.S. 1, 9 , 11 (1978) (plurality opinion). Thus, the First Amendme nt does not require unfettered access to government informa tion.

The District Court analyzed Whiteland Woods' First Amendment claim under the traditional public forum doctrine.2 See Whiteland Woods, 1997 WL 653906, at *6.

___________________________________________________ ______________

2. The government's ability to restrict speech is l imited in speech fora.

The Court has identified three types of fora : the traditional public forum, the public forum created by governmen t designation, and the nonpublic forum. Traditional public fora are defined by the objective characteristics of the property, such as whe ther, by long tradition

or by government fiat, the property has been de voted to assembly and

debate. . . .

9The Court of Appeals for the Eleventh Circuit has a lso

analyzed prohibitions on recordings of public proce edings under standards similar to those applied to time, p lace, and manner restrictions on speech in a public forum. Se e Blackston v. Alabama, 30 F.3d 117, 120 (11th Cir. 1 994) (per curiam) (denying summary judgment to defendant s for prohibiting audio recording of the Alabama Supreme Court Advisory Committee on Child Support Guidelines beca use plaintiffs alleged a non-content-neutral prohibitio n); United States v. Hastings, 695 F.2d 1278, 1282 (11th Cir. 1983) (upholding prohibition on videotaping, photographin g, and radio broadcasting in the courtroom). In contrast, the

___________________________________________________ ______________

Designated public fora, in contrast, are cr eated by purposeful governmental action. The government does not create a designated public forum by inaction or by permitting li mited discourse, but only by intentionally opening a nontraditional pu blic forum for public
discourse. . . .

Other government properties are either nonp ublic fora or not fora

at all.

Arkansas Educ. Television Comm'n v. Forbes, 523 U.S . 666, 677 (1998) (citations, internal quotation marks, and alteratio ns omitted). Time, place, and manner restrictions on speech in a publi c forum are permissible "provided [1] the restrictions are just ified without reference to the content of the regulated speech, [2] that th ey are narrowly
tailored to serve a significant governmental interest, and[3 ] that they leave open ample alternative channels for communication of the information." Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989) (i nternal quotation marks omitted). Restrictions on speech in a non-pub lic forum must be

reasonable and content-neutral. See Arkansas Educ. Television Comm'n,

523 U.S. at 677-78.

In addition, the Supreme Court has discussed "limit ed" public fora, which are designated for expression, but only on li mited topics. See,

e.g., Rosenberger v. Rector and Visitors of Univ., 515 U. S. 819, 829 (1995). Although there is some uncertainty whether limited public fora are a subset of designated public fora or a type of nonpu blic fora, see Summum v. Callaghan, 130 F.3d 906, 914-15 (10th Cir . 1997) (discussing cases), we have generally applied to li mited public fora the constitutional requirements applicable to designate d public fora. See Christ's Bride Ministries, Inc. v. Southeastern Pa. Transp. Auth., 148

F.3d 242, 248-55 (3d Cir. 1998).

10Courts of Appeals for the Seventh and Second Circui ts have

required only that restrictions on videotaping or audiotaping be content-neutral and reasonable, the standards applied to speech in a nonpublic forum. S ee United States v. Kerley, 753 F.2d 617, 620-21 (7th Cir. 1985) (upholding exclusion of television cameras fr om criminal trial); United States v. Yonkers Bd. of Ed uc., 747 F.2d 111, 114 (2d Cir. 1984) (upholding ban on audi otape recording of civil trial).

We are not convinced that forum analysis is necessa ry to resolve such restrictions on the right of access. Traditionally, the speech forum doctrine applies to "expressive" or "speech" activity. See Perry Educ. Ass'n v. Local Educators Ass'n, 460 U.S. 37, 45 (1983) (disc ussing a public forum as a place for "expressive activity" ); Brody v. Spang, 957 F.2d 1108, 1117 (3d Cir. 1992) ("The Sup reme Court has adopted a framework of forum analysis to assess whether a government entity must permit speech or expressive activity on its property."). Whiteland W oods does not allege the Township interfered with its speech or other expressive activity. Rather, the alleged constituti onal
violation consisted of a restriction on Whiteland W oods' right to receive and record information. In a simil ar context, the Court of Appeals for the Second Circuit found f orum analysis inapplicable to CNN's attempt to televise a libel
trial:

[I]t has never been suggested that there is a link
between the First Amendment interest that a litigant has in his trial as a "form of expression" a nd the right that the public may have to view that expres sion on television. Whatever public forum interest m ay exist in litigation, that interest is clearly a speak er's interest,
not an interest in access to the courtroom. Because the ability of neither General Westmoreland nor CBS to express views at trial is altered by the pre sence or absence of television cameras, CNN's public forum argument is, by itself, inapposite.

Westmoreland v. Columbia Broadcasting Sys., Inc. , 752 F.2d 16, 21-22 (2d Cir. 1984). Westmoreland was decided three days after Yonkers Board of Education, which, as no ted, evaluated a ban on audio recording using criteria s imilar to

11those governing restrictions on expressive speech i n a

nonpublic forum. See 747 F.2d at 114 (upholding the ban because it was content-neutral and reasonable). Alt hough the two panels applied somewhat different tests to the similar questions before them, their analyses are consistent. The critical question regarding a conte nt-neutral restriction on the time, place, or manner of access to a government proceeding is whether the restriction meaningfully interferes with the public's ability t o inform itself of the proceeding: that is, whether it limit s the underlying right of access rather than regulating t he
manner in which that access occurs.

In this case, Whiteland Woods' right of access to t he October 9 Planning Commission meeting was not meaningfully restricted by the ban on videotaping. The Township did not curtail Whiteland Woods' ability t o express its views before the Planning Commission or to compile an accurate record of the proceedings. Nor did it prohibit interested parties, reporters, or members of the public from attending the meetings or limit the gat hering of information by means other than by videotaping. Spe ctators were free to take notes, use audio recording device s, or even employ stenographic recording. Nothing in the record suggests videotaping would have provided a uniquely valuable source of information about Planning Commi ssion meetings. The First Amendment does not require stat es to accommodate every potential method of recording its proceedings, particularly where the public is grant ed alternative means of compiling a comprehensive reco rd. See Combined Communications Corp. v. Finesilver, 672 F. 2d 818, 821 (10th Cir. 1982) (upholding ban on televis ion coverage of court-ordered negotiations over elector al redistricting where members of the press were permi tted to attend the meetings and take notes); Garrette v. Es telle, 556 F.2d 1274, 1279 (5th Cir. 1977) (upholding prison's prohibition on filming execution because there were other methods of informing the public of the execution); Johnson v. Adams, 629 F. Supp. 1563, 1564-65 (E.D. Tex. 198 6) (holding county commissioners may ban video recordi ng of meetings where audiotaping was permitted). To put i t another way, plaintiff has failed to demonstrate an essential nexus between the right of access and a right to vi deotape

12the Planning Commission proceedings. See Westmorela nd,

752 F.2d at 23 ("There is a long leap . . . between a public right under the First Amendment to attend trials an d a public right under the First Amendment to see a giv en trial televised."). Accordingly, we believe Whiteland Woo ds has failed to demonstrate any deprivation of its First Amendment rights.

Whiteland Woods relies primarily on Cable News Network, Inc. v. American Broadcasting Companies, I nc., 518 F. Supp. 1238 (N.D. Ga. 1981), in which the cou rt considered restrictions on the press coverage of pr esidential activities. When only limited numbers of media representatives could be admitted to a given event, the Reagan administration admitted a media "pool" inclu ding a single television camera crew, which shared its fee d with others seeking to cover the event. Traditionally, t he pool representative had rotated among the three establis hed television networks: ABC, CBS, and NBC. When CNN sought to be included in the rotation, the administ ration announced that television representatives would be banned from pooled coverage unless the four networks agree d among themselves to a pool rotation system. In stri king down this restriction, the court found that televis ion coverage of these events had traditionally been per mitted, that such coverage provided information qualitative ly different from that available through print media, and that the administration's motive was to avoid designatin g members of the pool rather than terminate press cov erage. See id. at 1244-45. Because none of these factors i s present here, we believe Cable News Network is inapposite.3

We conclude that Whiteland Woods' right of access t o Planning Commission meetings did not create a feder al constitutional right to videotape the meetings. Whi teland Woods was allowed to attend all the meetings of the Planning Commission, including the October 9 sessio n, and

___________________________________________________ ______________

3. Whiteland Woods also cites Maurice River Townshi p Bd. of Educ. v. Maurice River Township Teachers Ass'n, 455 A.2d 563 (N.J. Super. Ct. Ch. Div. 1982) (holding that the public had the rig ht to videotape school board meetings). But that decision was based on New Jersey common law, not the First Amendment. See id. at 564.

13to compile a full record of the proceedings, whethe r by

written and stenographic notes or audiotaping. Ther efore, we believe the restriction on videotaping did not v iolate the
First Amendment.

B

Whiteland Woods also claims the Township violated i ts Fourteenth Amendment substantive due process rights when Officer Curran informed its representatives th ey could not videotape the October 9, 1996 meeting. Whitelan d Woods does not base its claim on an alleged infring ement of its fundamental rights under the First Amendment but instead on "what is arguably the most frightening a nd egregious abuse of governmental power which is the illegal deprivation of liberty by a municipal government th rough the raw use of its police force." (Appellant's Br. at 26.)

We have recently reviewed the substantive limitatio ns imposed by the due process clause on executive acti on such as police conduct:

"The touchstone of due process is the protec tion of the individual against arbitrary action of gover nment." . . . [W]here abusive action by a member of the ex ecutive branch is alleged, "only the most egregious official conduct can be said to be arbitrary in the constitutional sense." To generate liability , executive
action must be so ill-conceived or malicious that it
"shocks the conscience."

Miller v. City of Philadelphia, 174 F.3d 368, 374-7 5 (3d Cir. 1999) (quoting Wolff v. McDonnell, 418 U.S. 539 (19 74); County of Sacramento v. Lewis, 523 U.S. 833, 846 (1 998) (citation and internal quotation marks omitted)). T he
District Court found that this standard had not bee n met: "The police officer was requiring compliance with a dulyenacted resolution the Planning Commission believed was in the best interest of the public . . . . [A] poli ce officer's verbal instruction to comply with the law does not, without more, amount to `arbitrary action of government.' " Whiteland Woods, 1997 WL 653906, at *7 (quoting Wol ff, 418 U.S. at 558). We agree. In requiring compliance with the resolution, Officer Curran was acting in a rati onal

14manner. Contending that violation of the resolution was not

a criminal offense, Whiteland Woods suggests that i f the Township thought plaintiff's actions were illegal, "the appropriate thing to do would have been to seek red ress through the Court--not through enforcement by an ar med policeman." Plaintiff cites no authority for this p osition, nor does it explain how Curran's conduct rises to the l evel of a substantive due process violation.

IV

For the foregoing reasons, we will affirm the grant of summary judgment.

A True Copy:

Teste:

Clerk of the United States Court of Appeals
for the Third Circuit

15