NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

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No. 22-2848

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SANJAY K. BHATNAGAR,

Appellant

v.

MATTHEW MEYER, individually and in his official capacity

as the New Castle County Executive;

WILSON B. DAVIS, individually and in his official capacity

as the New Castle County Attorney;

NEW CASTLE COUNTY, a municipal corporation

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ON APPEAL FROM THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF DELAWARE

(D.C. No. 1-21-cv-00126)

District Judge: Honorable Colm F. Connolly

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Submitted Under Third Circuit L.A.R. 34.1(a) on July 11, 2023

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Before: SHWARTZ, RESTREPO, and CHUNG, Circuit Judges

(Opinion Filed: August 22, 2023)

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OPINION*

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

constitute binding precedent.
2

RESTREPO, Circuit Judge

Sanjay K. Bhatnagar, a former Assistant County Attorney (ACA) for New Castle 

County (NCC or the County), sued his supervisor, Matthew Meyer, and the County 

Executive, Wilson Davis, for terminating him. He alleges that he was terminated in 

violation of the Due Process Clause of the Fourteenth Amendment and 42 U.S.C. § 1983. 

For the following reasons, we will affirm.

I. BACKGROUND1

Bhatnagar was employed by the County as an ACA starting in June 2017. He is of 

Indian descent and a member of the Hindu religion. Meyer was, at all relevant times, the 

County Executive for NCC, and Davis was the County Attorney for NCC. On July 6, 2020, 

while working on a project, Bhatnagar reached out to an outside law firm for help. A day 

later, Davis emailed Bhatnagar condemning him for not following protocol and seeking 

outside help. Bhatnagar replied and explained why he did so and suggested escalating it 

to Davis’s boss, County Executive Meyer.

Two days after Bhatnagar emailed the outside law firm asking for help, Davis called 

Bhatnagar, told him that he served at Davis’s pleasure, and offered him the choice of 

1 Because this is an appeal from a grant of a motion to dismiss, we accept as true “[t]he 

facts alleged in the complaint and the reasonable inferences that can be drawn from those 

facts.” Farber v. City of Paterson, 440 F.3d 131, 134 (3d Cir. 2006). And because 

Bhatnagar quoted and relied on the transcript from his unemployment compensation

hearing in his Complaint, which the Defendants attached as an exhibit to their motion to 

dismiss, the Court will consider the transcript as part of this appeal. See Pension Benefit 

Guar. Corp. v. White Consol. Indus., Inc., 998 F.2d 1192, 1196 (3d Cir. 1993) (“[A] court 

may consider an undisputedly authentic document that a defendant attaches as an exhibit 

to a motion to dismiss if the plaintiff's claims are based on the document.”)
3

resigning with a separation agreement or being terminated for insubordination. Bhatnagar 

did not sign the proposed separation agreement and was then terminated. At his 

unemployment compensation hearing, Bhatnagar testified that he did not sign the 

termination letter because he believed his civil rights were violated.

Rather than signing the termination letter, Bhatnagar filed suit against Davis, Meyer, 

and the County, and alleged that he was terminated in violation of the Due Process Clause 

of the Fourteenth Amendment and § 1983. Defendants moved to dismiss. The District 

Court dismissed his procedural due process claim (Count I) and municipal liability claim

(Count III), but allowed his equal protection discrimination claim (Count II) to proceed. 

JA 18-19. He now timely appeals the dismissal of Counts I and III.2

II. JURISDICTION AND STANDARD OF REVIEW

The District Court had federal question jurisdiction under 28 U.S.C. §§ 1331 and 

1343(a). This Court has appellate jurisdiction under 28 U.S.C. § 1291. This Court exercises

plenary review of a district court’s ruling on a 12(b)(6) motion to dismiss. Newman v. 

Beard, 617 F.3d 775, 779 (3d Cir. 2010).

III. DISCUSSION

Count I – Procedural Due Process Claim

Bhatnagar wrongly claims that his dismissal from his job without a hearing deprived 

him of a property interest without due process of law. “Procedural due process imposes 

constraints on governmental decisions which deprive individuals of liberty or property 

2 On September 2, 2022, Bhatnagar agreed to a stipulation voluntarily dismissing Count II 

with prejudice. Thus, our opinion focuses on Count I and III.
4

interests within the meaning of the Due Process Clause of the Fifth or Fourteenth 

Amendment.” Mathews v. Eldridge, 424 U.S. 319, 332 (1976) (internal quotation marks 

omitted). Because Bhatnagar’s Complaint alleges wrongdoing by local actors, rather than

federal actors, the Court addresses his procedural due process claim under the Fourteenth 

Amendment. To plausibly state a procedural due process claim, Bhatnagar must establish 

that (1) he had a property interest protected under the Fourteenth Amendment; and (2) the 

procedures provided to him were constitutionally inadequate. See Alvin v. Suzuki, 227 F.3d 

107, 116 (3d Cir. 2000). Thus, the threshold question is whether Bhatnagar had a 

cognizable property interest protected under the Fourteenth Amendment.

The Constitution itself does not create property interests. See Bd. of Regents of State 

Colls. v. Roth, 408 U.S. 564, 577 (1972). Instead, property interests are “created and their 

dimensions are defined by existing rules or understandings that stem from an independent 

source such as state law—rules or understandings that secure certain benefits and that 

support claims of entitlements to those benefits.” Id.; see also Bishop v. Wood, 426 U.S. 

341, 345 (1976) (“[T]he sufficiency of the claim of entitlement must be decided by 

reference to state law.”).

Bhatnagar does not have a property interest in his employment protected by the 

Fourteenth Amendment. As the District Court aptly stated, Section 1394 of Title 9 of the 

Delaware Code unambiguously states that Assistant County Attorneys, like Bhatnagar, 

“shall serve at the pleasure of the County Attorney.”3 See Grimaldi v. New Castle Cnty., 

3 The statute reads that “[t]he County Attorney shall appoint such Assistant County 

Attorneys as may be authorized by the County Council. The Assistant County Attorneys 
5

No. 15C-12-096 (ESB), 2016 WL 4411329, at *3 (Del. Super. Ct. Aug. 18, 2016) (stating 

that “serv[ing] at the pleasure of” the New Castle County Executive is synonymous with 

being an “at-will” employee); See Bhatnagar v. Meyer, No. 21-cv-00126-CFC, 2021 WL 

7209368, at *2 (D. Del. Dec. 20, 2021). And in Bishop, the Supreme Court held that no 

deprivation of property under the Due Process Clause of the Fourteenth Amendment arises 

from “the discharge of a public employee whose position is terminable at the will of the 

employer when there is no public disclosure of the reasons for the discharge.” 426 U.S. at 

348; see also Chabel v. Reagan, 841 F.2d 1216, 1224 (3d Cir. 1988) (same).

Bhatnagar argues that the statute is ambiguous and should be read to provide “just 

cause” protections. He argues that whenever “the Delaware General Assembly uses the 

phrase ‘at the pleasure of’ and intends the employee to be dischargeable ‘at any time and 

for any reason,’ it adds additional statutory language making that intent explicit.” 

Appellant’s Br. at 14. If it does not add additional statutory language, like the relevant 

statute here, then “such low level, non-policymaking” employees who serve “at the 

pleasure of” other employees “retain various well-established” protections that do not make 

them removable at will.4Id. In other words, “at the pleasure of”—without more—does not 

mean “at the pleasure of.” 

shall serve at the pleasure of the County Attorney. First Assistant County Attorneys shall 

be selected according to provisions of the Merit System of the New Castle County Code.” 

Del. Code Ann. tit. 9, § 1394.

4 Bhatnagar also creates a distinction between “high level” and “low level” employees, but 

does not cite, nor can the Court find, any case law or Delaware code provision establishing 

that distinction in this context. Bhatnagar’s citation to Harmon v. State, 62 A.3d 1198 (Del. 

2013) is misplaced. The Delaware Supreme Court’s decision did not mention the 

distinction Bhatnagar draws. Id. at 1200–02. In fact, the court left undisturbed the lower 
6

That cannot be so. The statute reads that the “Assistant County Attorneys shall serve 

at the pleasure of the County Attorney.” Del. Code Ann. tit. 9 § 1394. “[A]t the pleasure 

of” is synonymous with “at will.” See Grimaldi, 2016 WL 4411329, at *3; see also Elmore 

v. Cleary, 399 F.3d 279, 282 (3d Cir. 2005) (suggesting that an “at-will employee” is the 

same as an employee who “serves solely at the pleasure of her employer”); Hill v. Borough 

of Kutztown, 455 F.3d 225, 234 (3d Cir. 2006) (same). At will employment is subject to 

termination “with or without cause.” See Collision v. State ex rel. Green, 2 A.2d 97, 99–

100 (Del. 1938). Hence, the legislature stating that Bhatnagar, an ACA, serves at will and 

is subject to termination with or without cause does not leave room for the Court to interpret 

it any other way. See Conn. Nat’l Bank v. Germain, 503 U.S. 249, 253–54, (1992)

(“[C]ourts must presume that a legislature says in a statute what it means and means in a 

statute what it says there. When the words of a statute are unambiguous, then, this first 

canon is also the last: judicial inquiry is complete.”) (internal citations and quotations 

omitted); see also Lawson v. State, 91 A.3d 544, 549 (Del. 2014) (stating that, under 

Delaware law, a statute is ambiguous only if it can have “two or more reasonable 

interpretations” or “if a literal reading would lead to an unreasonable or absurd result not 

contemplated by the legislature”) (internal citations and quotations omitted). Accordingly, 

“at the pleasure of”—without qualification or more—really does mean “at the pleasure of.” 

court’s finding that the employee-in-question served at the pleasure of his employee and 

was therefore removable at will. Harmon v. State, No. 07C-01-003 WLW, 2011 WL 

5966717, at *1 (Del. Super. Ct. Nov. 17, 2011), rev’d, 62 A.3d 119.
7

Count III – Monell Liability Claim

Bhatnagar alleges that the County is liable because the decisions made by Meyer 

and Davis are attributable, to NCC under the doctrine of Monell v. Department of Social 

Services of City of New York, 436 U.S. 658 (1978). This claim fails because Bhatnagar no 

longer has a cognizable constitutional claim.

A municipality “cannot be held liable under § 1983 on a respondeat superior

theory.” Id. at 691. But a municipality can be held liable when the “execution of a 

government’s policy or custom, whether made by its lawmakers or by those whose edicts 

or acts may fairly be said to represent official policy, inflicts the injury.” Id. at 694; see 

also Mann v. Palmerton Area Sch. Dist., 872 F.3d 165, 175 (3d Cir. 2017), as amended

(Sept. 22, 2017) (plaintiff must show that “implementation of a municipal policy or custom, 

causes a constitutional violation.”). Accordingly, the Court must analyze “whether 

plaintiff’s harm was caused by a constitutional violation” and whether the municipality is 

responsible for that violation. Collins v. City of Harker Heights, 503 U.S. 115, 120 (1992). 

Bhatnagar’s Monell liability claims fail because he has no remaining cognizable 

constitutional claim. Neither of the alleged constitutional claims—that is, the procedural 

due process claim (Count I) nor the equal protection discrimination claim (Count II)—

remain. The procedural due process claim fails, as explained above, see supra, Section 

III.A., and Bhatnagar voluntarily chose to dismiss his equal protection claim with prejudice 

to proceed with this appeal, see supra, n.1.5 Therefore, because Bhatnagar lacks an 

5 Even if the dismissal of Bhatnagar’s equal protection claim did not foreclose his Monell

claim, his Monell claim would still fail because neither Davis nor Meyer constitute 
8

underlying claim of a constitutional violation, there cannot be a Monell claim. See City of 

Los Angeles v. Heller, 475 U.S. 796, 799 (1986). 

Dismissal with Prejudice

The District Court also did not err in dismissing Bhatnagar’s complaint with 

prejudice and it did not need to provide Bhatnagar an opportunity to amend. While 

Defendants argue that Bhatnagar’s failure to identify additional facts he would include in 

an amended complaint should bar him from seeking permission to amend, we have held 

that, in civil rights cases, “leave to amend must be granted sua sponte before dismissing” 

the complaint. Fletcher-Harlee Corp. v. Pote Concrete Contractors, Inc., 482 F.3d 103, 

108 (3d Cir. 2002). Here, no new facts would change the legal conclusions that Bhatnagar 

did not have a property interest in his continued employment and neither Davis nor Meyer 

were official policymakers. As such, the District Court did not abuse its discretion in 

dismissing the complaint with prejudice.

IV. CONCLUSION

We will affirm the District Court’s order dismissing Counts I and III with prejudice.

official policymakers sufficient to hold NCC liable for their termination of Bhatnagar. 

McGreevy v. Stroup, 413 F.3d 359, 367–68 (3d Cir. 2005) (explaining that a municipality 

can only be liable for the single act of a municipal official when that official is an official 

policymaker).