NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 17-3375

___________

GNANA M. CHINNIAH, also known as Gnanachandra M. Chinniah; SUGANTHINI 

CHINNIAH, Appellants

v.

EAST PENNSBORO TOWNSHIP; JEFFREY S. SHULTZ; KAREN DUNKLE; JAMES 

HERZLER; JOHN KUNTZELMAN; CHRISTOPHER UNDERHILL; LAW OFFICES 

OF HARTMAN UNDERHILL & BRUBAKER; JOSHUA AUTRY; JEFFREY 

CONRAD; LAW OFFICES OF CLYMER MUSSER & CONRAD; CUMBERLAND 

COUNTY TAX CLAIM BUREAU

____________________________________

On Appeal from the United States District Court

for the Middle District of Pennsylvania

(D.C. Civil No. 1-15-cv-02240)

District Judge: Honorable Yvette Kane

____________________________________

Submitted Pursuant to Third Circuit LAR 34.1(a)

December 4, 2018

Before: GREENAWAY, JR., RESTREPO and FUENTES, Circuit Judges

(Opinion filed: January 24, 2019)

___________

OPINION*

___________

PER CURIAM

 * This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not 
2

Pro se appellants Gnana and Suganthini Chinniah appeal the District Court’s order 

dismissing their amended complaint. For the reasons discussed below, we will affirm in 

part, vacate in part, and remand for further proceedings.

This case is effectively a sequel to a civil-rights action that the Chinniahs filed in 

2008. In the first action, the Chinniahs claimed that East Pennsboro Township and one of 

its building inspectors discriminated against them because they are of Indian descent and 

adhere to Hinduism. The Chinniahs purchased property in East Pennsboro in 2007, and 

alleged that the defendants treated them worse than the previous owner, a white man, and 

that this was part of a pattern in East Pennsboro of treating Indian property owners worse 

than similarly situated non-Indians. After a four-day trial, a jury found for the defendants. 

The Chinniahs appealed, and we affirmed. See Chinniah v. E. Pennsboro Twp., 602 F. 

App’x 558 (3d Cir. 2015) (per curiam) (non-precedential).

The Chinniahs then instituted this action under 42 U.S.C. § 1983 against East 

Pennsboro Township, four Township employees,1 three lawyers and their firms, and the 

Cumberland County Tax Claim Bureau. They alleged that the defendants had retaliated 

against them for filing the first action, violated their Fourth Amendment rights by 

entering their rental unit on several occasions, violated their due process rights by failing 

 

constitute binding precedent.

1 These individuals are (1) John Kuntzelman, a current commissioner of East Pennsboro 

Township; (2) James Herzler, a former commissioner of East Pennsboro Township and 

current commissioner of Cumberland County; (3) Jeffrey Shultz, the building inspector 

who was a defendant in the first action; and (4) Karen Dunkle, a building inspector and 

code enforcement officer. 
3

to hold a hearing before condemning the rental unit, prevented them from accessing the 

courts, violated their rights under the Equal Protection Clause by treating them differently 

from white property owners, conspired to violate their rights, and committed numerous 

state-law torts. 

Approving a report and recommendation from a Magistrate Judge, the District 

Court granted the defendants’ motions to dismiss and dismissed the complaint in its 

entirety. The Court dismissed all claims with prejudice with the exception of the 

retaliation and conspiracy claims, which the Court allowed the Chinniahs to replead, and 

the state-law claims, which the Court dismissed without prejudice to the Chinniahs’ 

reasserting in state court. The Chinniahs filed an amended complaint. Again approving a 

report and recommendation, the District Court dismissed the amended complaint. The 

Chinniahs filed a timely notice of appeal. 

We have jurisdiction under 28 U.S.C. § 1291. We exercise a plenary standard of 

review. See Fleisher v. Standard Ins. Co., 679 F.3d 116, 120 (3d Cir. 2012). In 

reviewing the dismissal under Rule 12(b)(6), “we accept all factual allegations as true 

[and] construe the complaint in the light most favorable to the plaintiff.” Pinker v. Roche 

Holdings Ltd., 292 F.3d 361, 374 n.7 (3d Cir. 2002). To survive a motion to dismiss, a 

complaint’s “[f]actual allegations must be enough to raise a right to relief above the 

speculative level.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007).

At the outset, we note that, because the Chinniahs have not challenged the District 

Court’s dismissal of their access-to-the-courts or due-process claims or its dismissal of 
4

their § 1983 claims against the attorneys and the law firms on the ground that they were 

not state actors, we will not consider those matters on appeal. See Laborers’ Int’l Union 

of N. Am., AFL-CIO v. Foster Wheeler Corp., 26 F.3d 375, 398 (3d Cir. 1994) (“An 

issue is waived unless a party raises it in its opening brief, and for those purposes a 

passing reference to an issue will not suffice to bring that issue before this court.” 

(quotation marks, alteration omitted); Mala v. Crown Bay Marina, Inc., 704 F.3d 239, 

245 (3d Cir. 2013) (noting that pro se litigants “must abide by the same rules that apply to 

all other litigants”). Further, we will not consider the Chinniahs’ argument that the 

condemnation of their rental unit amounts to a taking in violation of their Fifth 

Amendment rights because they did not raise this claim in the District Court. See, e.g., 

Birdman v. Office of the Governor, 677 F.3d 167, 173 (3d Cir. 2012).

Meanwhile, although the Chinniahs’ claim that the defendants conspired against 

them in violation of 42 U.S.C. § 1985 is properly before us, we will affirm the District 

Court’s dismissal of the claim. As the District Court explained, the Chinniahs simply 

have not provided “plausible grounds to infer an agreement” between the sundry 

defendants. Great W. Mining & Mineral Co. v. Fox Rothschild LLP, 615 F.3d 159, 178 

(3d Cir. 2010) (quoting Twombly, 550 U.S. at 556). Likewise, the District Court 

properly dismissed the Chinniahs’ claims against Pennsboro Township and the 

Cumberland County Tax Claim Bureau because they failed altogether to show that the 

alleged deprivation of their constitutional rights resulted from any official policy or 

custom. See Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 694 (1978); see also Groman 
5

v. Twp. of Manalapan, 47 F.3d 628, 637 (3d Cir. 1995) (finding “vague assertions” were 

insufficient to impose Monell liability).2

However, we will vacate in part the District Court’s dismissal of the Chinniahs’ 

retaliation claims. To plead a plausible First Amendment retaliation claim, the Chinniahs 

were required to allege three elements: (1) “[they] engaged in constitutionally protected 

conduct, (2) there was retaliatory action sufficient to deter a person of ordinary firmness 

from exercising [their] constitutional rights, and (3) there was a causal link between the 

constitutionally protected conduct and the retaliatory action.” Conard v. Pa. State Police, 

902 F.3d 178, 183 (3d Cir. 2018) (alterations omitted) (quoting Mirabella v. Villard, 853 

F.3d 641, 649 (3d Cir. 2017)). The Chinniahs allege that, in retaliation for filing and 

litigating their previous action, the defendants raised their property-tax assessment, 

induced the Cumberland County Housing and Redevelopment Authorities to refuse to 

pay rent for a property it leased from them, and endeavored to have their rental property 

condemned. 

We agree in part with the District Court’s resolution of these claims. As the 

District Court ruled, the Chinniahs failed to plead that John Kuntzelman had any personal 

involvement in any of the alleged acts of retaliation. See Chavarriaga v. N.J. Dep’t of 

 2 Like the District Court, we interpret the Chinniahs’ equal-protection claim to be 

asserted primarily against the Township, and conclude that they have to plead a plausible 

equal-protection claim against any individual defendant. See generally Hill v. Borough 

of Kutztown, 455 F.3d 225, 239 (3d Cir. 2006). We also agree with the District Court 

that the Chinniahs are barred from re-litigating issues or claims that were decided 

adversely to them in the first action. See generally Montana v. United States, 440 U.S. 
6

Corr., 806 F.3d 210, 222 (3d Cir. 2015); see also Rode v. Dellarciprete, 845 F.2d 1195, 

1207 (3d Cir. 1988) (“Allegations of participation or actual knowledge and acquiescence, 

however, must be made with appropriate particularity.”). Likewise, they failed to plead 

that (a) any of the named defendants were personally involved in the failure of the 

Cumberland County Housing and Redevelopment Authorities to pay rent; (b) Jeffrey 

Shultz or James Herzler had any personal involvement in the condemnation; and (c) 

Karen Dunkle had any personal involvement in the tax reassessment. However, we are 

satisfied that the Chinniahs adequately pleaded that Shultz and Herzler were personally 

involved in the property reassessment by providing incorrect information about the 

construction that the Chinniahs had completed and that Dunkle was personally involved 

in the condemnation.3

 

Further, as to these defendants and these claims only, we conclude that the 

Chinniahs adequately pleaded causation. The District Court concluded that there was no 

unusual temporal proximity between the date that the Chinniahs filed their first action 

and the reassessment or the condemnation. However, we have not always limited our 

analysis of temporal proximity to the date that the previous action was filed. See Hill v. 

City of Scranton, 411 F.3d 118, 132–33 (3d Cir. 2005) (looking to disposition of appeal); 

 

147, 153 (1979). 3 The Chinniahs also alleged that Kuntzleman and Herzler retaliated against them by 

failing to show up at the first trial to testify. However, in light of the Chinniahs’ 

admissions that these defendants did appear for depositions and then were not called by 

the Chinniahs’ counsel to testify at trial, we agree with the District Court that this conduct 

would not deter a person of ordinary firmness from exercising their First Amendment 
7

see also Treglia v. Town of Manlius, 313 F.3d 713, 720–21 (2d Cir. 2002). Moreover, “it 

is causation, not temporal proximity itself, that is an element of plaintiff’s prima facie 

case, and temporal proximity merely provides an evidentiary basis from which an 

inference can be drawn.” Kachmar v. SunGard Data Sys., Inc., 109 F.3d 173, 178 (3d 

Cir. 1997). We conclude that, at least for purposes of the motion-to-dismiss stage, the 

Chinniahs’ allegations of retaliation “do not lack plausibility,” and the District Court’s 

dismissal on the basis of causation in these circumstances was “premature at the motion 

to dismiss stage.” Conard, 902 F.3d at 184.

We reach the same conclusion as to the Chinniahs’ Fourth Amendment claim. 

The Chinniahs alleged that Dunkle “made multiple intrusions” onto their property leading 

up to the condemnation proceedings. The District Court dismissed this claim on two 

grounds, concluding that “Dunkle’s entry onto the State Street Property and subsequent 

search was inherently reasonable under the consent and exigency exceptions to the 

warrant requirement in light of the tenant’s complaint of flooding from broken sewer 

lines.” D.C. dkt. #71 at pg. 26. While we express no opinion about whether these 

defenses may have merit at a different stage of the case, we conclude that it was 

premature for the District Court to dismiss the claims on these grounds.

It is typically the Government’s burden to show that the consent or exigency 

exception to the warrant requirement applies. See United States v. Price, 558 F.3d 270, 

277 (3d Cir. 2009); Parkhurst v. Trapp, 77 F.3d 707, 711 (3d Cir. 1996). These defenses 

 

rights. See generally McKee v. Hart, 436 F.3d 165, 173 (3d Cir. 2006).
8

are not apparent on the face of the complaint. Moreover, while we acknowledge that 

Dunkle filed the record from the condemnation proceedings, without converting the 

motion to dismiss to a motion for summary judgment, the District Court could take 

judicial notice of only the existence of these proceedings, not for the truth of the facts 

asserted in the record. See Lum v. Bank of Am., 361 F.3d 217, 221 n.3 (3d Cir. 2004). 

The Chinniahs alleged that Dunkle entered and searched their property on multiple 

occasions; we have found no facts either as alleged in the complaint or of which we may 

judicial notice that establish that each search was either consented to or justified by 

exigent circumstances. See generally Michigan v. Tyler, 436 U.S. 499, 511 (1978) 

(ruling that while no warrant is necessary for entry to fight a fire and to remain thereafter 

to investigate the cause, “additional entries to investigate the cause of the fire must be 

made pursuant to the warrant procedures governing administrative searches”). 

Accordingly, we will also vacate the District Court’s dismissal of this claim. 

Thus, we will affirm the District Court’s judgment in part and vacate in part and 

remand for further proceedings. More particularly, we will affirm the District Court’s 

dismissal of all of the Chinniahs’ claims with the exception of the following claims under 

§ 1983: (1) a First Amendment retaliation claim against defendants Shultz and Herzler

concerning the property reassessment; (2) a First Amendment retaliation claim against 

defendant Dunkle concerning the condemnation proceedings; and (3) a Fourth 
9

Amendment claim concerning Dunkle’s alleged multiple searches of the rental property.4

 

Because our decision to remand this matter as to these claims means that not all claims 

over which the District Court has original jurisdiction have been dismissed, we will also 

vacate and remand the District Court’s order as to supplemental jurisdiction. See United 

States ex rel. Silver v. Omnicare, Inc., 903 F.3d 78, 94 (3d Cir. 2018).5

 4 We express no opinion about the merits of these claims or whether the defenses that the 

defendants have asserted might be viable at a later stage of this case.

5 The Chinniahs’ motions to recuse counsel and to strike one of the response briefs are 

denied.