NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

___________ No. 13

- 1477

___________ MARLENE S. MILLER

v. POCONO RANCH LANDS PROPERTY OWNERS ASSOCIATION INC

. , and its President; KATHLEEN SIMONCIC, and its Treasurer and Membe r; ROY BORGFIELD, and its board member and its Secretary; PAUL D. MENDITTO, and its Community Manager; DAVID CAVANAUGH; LEHMAN TOWNSHIP PLANNING COMMISSION, and its Chairman; RICHARD C. VOLLMER, in their official capacity only Marlene S. Miller, and *Mari a Grusha

- Manta, a/k/a Mary Motidai Goriah, Appellants *(Pursuant to F.R.A.P. 12(a))

____________________________________ On Appeal from the United States District Court for the Middle District of Pennsylv ania (D.C. Civil Action No. 3

- 11

- cv - 00317 ) District Judge: Honorable Joel H. Slomsky

____________________________________ Submitted Pursuant to Third Circuit LAR 34.1(a)

February 20, 2014 Before: FUENTES, GREENBERG and VAN ANTWERPEN , Circuit Judges

(O pinion filed February 21, 2014 )

___________ OPINION

___________2

PER CURIAM Pro se appellant Marlene Miller appeals the District Court’s order dismissing her third amended complaint under Rule 12(b)(6) of the Federal Rules of Civil Procedure.
We have ju risdiction under 28 U.S.C. § 1291 and exercise a plenary standard of review.
See Fleisher v. Standard Ins. Co. , 679 F.3d 116, 120 (3d Cir. 2012)

. For the reasons set forth below, we will affirm the District Court’s judgment

. This case concerns a land di spute. In 2010, Mille r acquired a parcel of property from her aunt, M aria Grusha. That property is located within the Pocono Ranch Lands Property Owners Association Inc . (“the Association”). Miller’s third amended complaint

— the operative complaint in this appeal

— allege s that the Association, the individuals who cont rol it, and certain Lehman Township officials (collectively, “the defendants”) have acted improperly in the following ways: (1) they have failed to recognize that Miller’s property is dee ded commercial, not residential; (2) they have sent fee and assessment bills to her 1 ; (3) they denied her request for a variance that would have allowed her to use the property for commerc ial purposes; and (4) by placing an easement on the property and ref

using to allow her to use the property for commercial purposes, they have effectively taken the property. Based on these allegations, she asserted numerous federal and state claims. The defendants filed motions to dismiss the third amended complaint pur suant to Fed. R. Civ. P. 12(b)(6), and in a thorough report and recommendation, a Magistrate

1 It appears that the Association charges property owners for items like road maintenance3

Judge recommended that the District Court grant those motions and dismiss the complaint. The District Court adopted that report and recommendation and dismissed t he action. Miller then filed a timely notice of appeal to this Court. We agree in full with the District Court’s disposition of this case. As an initial matter, the Court was correct to hold that Miller, as a pro se plaintiff, is no t permitted to
repre sent Grusha in this action. See Lazaridis v. Wehmer , 591 F.3d 666, 672 (3d Cir. 2010) . This same prohibition prevents her from representing her late uncle’s estate. See Malone v. Nielson , 474 F.3d 934, 937 (7th Cir. 2007) (per curiam)

. The District Cou rt thus did not err in dismissing those claims that Miller purported to assert on behalf of others, although we stress that the dismissal as to these claims is without prejudice. See,
e.g. , Berrios v. N.Y.C. Hous. Auth. , 564 F.3d 130, 135 (2d Cir. 2009)

. Further, since Grusha herself did not participate in the action before the District Court, she is not a proper party in this appeal

. See United States v. Stoerr , 695 F.3d 271, 275

- 76 (3d Cir. 2012). Accordingly, we will consider only Miller’s claims.
Mi ller first argues that the defendants violated her rights under 42 U.S.C. §§ 198 1 and 198 2 . However, as the District Court noted , these statutes outlaw racial discrimination. See Brown v. Philip Morris Inc. , 250 F.3d 789, 797 (3d Cir. 2001). Miller has not alleged that she is a racial minority or that the defendants’ alleged misconduct was racially motivated . Therefore, the District Court properly dismissed the se claims

. See id.

and public

- safety services.4

Miller ’s claim under 42 U.S.C. § 1985(3) suffers from a similar infirmity. To state a claim under § 1985(3), the “claimant must allege some racial, or perhaps otherwise class

- based, invidiously discriminatory animus behind the conspirators’ action.” Farber v. City of Paterson , 440 F.3d 131, 135 (3d Cir. 2006) (quotation marks omitted). As noted above, Miller has not alleged racial discrimination; further, she has not identified
any other class to which she belongs that is cognizable under § 1985. See id. at 136. Thus, the District Court was also correct to dismiss this claim

. Miller further asserts several claims under 42 U.S.C. § 1983; as the District Court concluded, none of these claims ha s merit. First, Miller contends that the defenda nts , in denying her request for a variance, violated her procedural

- due

- process right s. T o state a procedural

- due

- process claim, Miller must show , among other things, that the state

“ procedures available to [her] did not provide due process of law.” Hill v. Borough of
Kutztown , 455 F.3d 225, 2 3 4 (3d Cir. 2006) (quotation marks omitted). However , Pennsylvania affords a full judicial mechanism for an aggrieved landowner to challenge the decision to deny a variance

. See, e.g. , DeFilippo v. Cranberry T w p. Bd. of Supervisors , 49 A.3d 939 , 941

- 42 (Pa. C om mw . Ct. 2012). We have held that th es e procedure s provide due process, which is fatal to Miller’s claim

. S ee Rogin v. Bensalem Twp. , 616 F.2d 680, 694

- 95 (3d Cir. 1980). Miller also contends that the defendants violated her substantive

- due

- process rights. This claim likewise fails as a m atter of l aw. To state a substantive

- due

- process claim in a land

- use case, the plaintiff must show that the defendants’ conduct “shocks the conscience.” Eichenlaub v. Twp. of Indiana , 385 F.3d 274, 285 (3d Cir. 2004) . We have5

previously concluded that c laims similar to Miller’s

— such as that the defendants applied zoning requirements unfairly, pursued unnecessary enforcement actions, and delayed permits and approvals

— fail ed to satisfy this standard. See id. at 286. Thus, we will affirm the District Court’s dismissal of this claim. In Miller’s final § 1983 claim, she argues that, by placing a restrictive easement on the property and refusing to allow her to use the property for commercial purposes, the defendants have taken the property under the Fift h Amendment. However , “[a] plaintiff must first seek compensation through the procedures the State has provided for doing so before asserting a federal takings claim. ” Chainey v. Street , 523 F.3d 200 , 222 (3d Cir.
2008 ). Miller has admittedly not done s o, and as a consequence, this claim is not yet ripe for our review. See id. at 222

- 23. Finally, Miller claims that the defendants violated the civil RICO statute. See 18 U.S.C. § 1962(c). In order to state a RICO claim, Miller must plausibly allege the following elements: “(1) conduct (2) of an enterprise (3) through a pattern (4) of racketeering activity.” Sedima, S.P.R.L. v. Imrex Co. , 473 U.S. 479, 496 (1985) (footnote omitted)

. In order to have standing to litigate a civil RICO claim, a plaintiff
must show that s he suffered an injury to her business or property and that the injury was proximately caused by the defendant ’ s racketeering activities. See, e.g. , Maio v. Aetna,
Inc. , 221 F.3d 472, 483 (3d Cir. 2000). There are a few problems with Miller ’s RICO claim. First, her allegations concerning the defendants’ alleged misconduct are vague and conclusory, and are simply insufficient to state a valid RICO claim. See, e.g. , Lum v. Bank of Am. , 361 F.3d 217,6

223

- 24 (3d Cir. 2004). Moreover, Miller h as not pleaded that she suffered the requisite injury to her business or property. While Miller alleges that Grusha was injured, a plaintiff cannot sustain a RICO claim based on “harm flowing merely from the misfortunes visited upon a third person by the defendant’s acts.” Brokerage Concepts, Inc. v. U.S. Healthcare, Inc. , 140 F.3d 494, 521 (3d Cir. 1998) (quotation marks omitted). Further , although Miller contends that the defendants committed mail or wire fraud by sending assessment bills to her, Mille r also asserts that she knew, even before she owned the property, that these bills were unwarranted ; it does not appear that she has ever made any payment on the m . Thus, Miller cannot establish either that the defendants committed fraud or that she suffer ed an injur y . See Ideal Dairy Farms, Inc. v. John Labatt, Ltd. , 90 F.3d 737, 746

- 47 (3d Cir. 1996). 2
A ppellees , for their part, ask us to impose damages and costs for the filing of a frivolous appeal under Federal Rule of Appellate Procedure 38. An appea l is deemed frivolous if it is “wholly without merit.” Quiroga v. Hasbro, Inc. , 943 F.2d 346, 347 (3d Cir. 1991). W hile Rule 38 damages might be appropriate if Miller had filed this appeal with the aid of counsel, “an unrepresented litigant should not be punished with damages for [her] failure to appreciate legal subtleties in legal arguments.” Beam v. Bauer , 383 F.3d 106, 109 (3d Cir. 2004). Accordingly, we will not impose damages against Miller;

we will, however, tax costs against her under Federal Ru le of Appellate Procedure 39(a)(2).

2 H aving dismissed Miller’s federal claims, the District Court acted within its discretion in declining to exercise supplemental jurisdiction over her state

- law claims. See 287

We will therefore affirm the District Court’s judgment. Appellees ’ Rule 38 motion is denied

. Miller’s request for a jury trial is denied.

U.S.C. § 1367(c)(3); Figueroa v. Buccan eer Hotel Inc. , 188 F.3d 172, 181 (3d Cir. 1999).