PSM
- 202 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

___________ No. 11

- 1096

___________ MADHU AGARWAL; DR. ANIL AGARWAL , Appellant s

v. SCHUYLKILL COUNTY TAX CLAIM BUREAU; MANTURA M. GALLAGHER;

ROBERT S. F RYCKLUND; SHELLY K. MORRISON; RUSSELL T. MOTSKO; PAMELA; DENISE MCGINLEY

- GERCHAK; PENNSYLVANIA TAX COLLECTION, INC.; HAZLETON AREA SCHOOL DISTRICT, c/o Richard J. Schrider, Esquire, Portnoff Law Associates, Ltd.; MID COUNTY RESOURCES, LLC; KLINE TOWNSHIP, THROUGH SUPERVISORS; KLINE TOWNSHIP SUPERVISORS; FRANCIS PATTON, KTMA; KLINE TOWNSHIP MUNICIPAL

AUTHORITY; PAUL DATTE, ESQ.; KLINE TOWNSHIP POLICE; STAT E OF

PENNSYLVANIA THROUGH ATTORN EY GENERAL; HAZLETON CITY

AUTHORITY WATER DEPARTMENT; HAZEL TOWNSHIP THR OUGH SUPERVISORS; HAZEL TOWNSHIP SUPERVISORS; JOHN DOE, #21; JOHN DOE, #22; JANE DOE, #23; SCHUYLKILL COUNTY PROTHONOTARY ’ S OFFICE;

SCHUYLKILL COUNTY SHERIFF, COURT ADMINISTRATOR ’ S OFFICE; JANE AND JOHN DOE, 27 to 51

____________________________________ On Appeal from the United States District Court for the Middle District of Pennsylvania

(D.C. Civil Action No. 09

- cv
- 01921 ) District Judge: Honorable A. Richard Caputo

____________________________________ Submitted Pursuant to Third Circuit LAR 3 4.1(a) August 25, 2011
Before: AMBRO, HARDIMAN and VAN ANTWERPEN , Circuit Judges (Opinion filed : August 26, 2011 )2 ___________

OPINION

___________ PER CURIAM
Dr. Anil Agarwal and his wife Madhu Agarwal (“t he Agarwals ”), proceeding pro
se, ap peal from the July 14, 2010 and December 15, 2010 order s of the District Court granting D efendants’ motions to dis miss their civil rights action. We will affirm

. II.
I n October 2009, the Agarwals filed a civil rights actio n pursuant to 42 U.S.C. §
1983. The action stemmed from unpaid state tax bills which led to tax liens being placed

on the Agarwals’ property

. In their original pleading, the Agarwals named twenty

- six
Defendant s , along with John and Jane Doe D efendants number s twenty

- seven to fifty

one. After the named D efendants were served, all but one joined in one of several
motions to dismiss. T he Agarwals then filed a motion to amend their c omplaint, which the District Court granted

. In light of the Court’s order granting the motion to amend,
De fendants’ motions to dismiss were denied as moot.
The Agarwals subsequently filed their amended complaint. In the first two count s of the amended complaint, the Agarwals claimed that they were denied their constitutional right to pay their delinquent r eal estate taxes by personal check. In counts three and four, they claim ed that their rights were violated when several Defendants conspired to prevent the water from being turned off at their property in order to force them to pay a higher utility bill

. In c ount five, they claimed that they were not given3 adequate notice that their tax debt would be sold to a different company . In count six , they alleged that their First Amendment rights were violated because they were precluded
from challen ging the sal e of their property in court.
Defendants Paul Datte and Pennsylvania Tax Collection, Inc. (“PTC”) moved to dismiss the complaint pursuant to Rule 12(b)(6) of the Federal Rule s of Civil Procedure

. All remaining Defendants filed motions to dismiss as well. The Agarwals filed various briefs opposing the dismissal of their amended complaint. The M agist rate J udge assigned to the case issued a report recommending that motions to dismiss of Paul Datte
and PTC be granted. In a July 14, 2010 order , the District Court adopted the report and

recomme ndation of the Magistrate J udge and dismissed th e Agarwals’ claims against
those two Defendants.
The ca se was then recommitted to the Magistrate J udge for further proceedings on
the remai ning dispositive motions. The Magistrate J udge issued a series of reports recommending that the Defendants’ motions be granted in their entirety. The Agarwals filed objections and, by order entered December 15, 2010, the District Court granted all remaining Defendants’ motions and dis missed the Agarwals’ amended complaint with prejudice. This appeal followed.
II. We have jurisdiction pursuant to 28 U .S.C. § 1291. We exercise plenary review over the dismissal of a complaint pursuant to Federal Rule of Civil Procedure 12(b)(6).
Atk inson v. LaFayette College , 460 F.3d 447, 451 (3d Cir. 2006)

. “In deciding a motion to dismiss, all well

- pleaded allegations of the complaint must be taken as true and4 interpreted in the light most favorable to the plaintiffs, and all inferences must be d rawn in favor of them.” McTernan v. City of York , 577 F.3d 521, 526 (3d Cir. 2009) (internal
citatio n and quotation marks omitted). To withstand a Rul e 12(b)(6) 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 , __ U.S. __, 129 S. Ct. 1937, 1949 (2009) (quoting Bell Atl. Corp. v. Twombly , 550 U.S. 544, 570 (2007)). We may affirm the District Court on any basis supported by the record. S ee Fairview Township v. EPA , 773 F.2d 517, 525 n.15 (3d Cir. 1985). A section 1983 plaintiff must demonstrate that a person acting under the color of state law violated a right protected by the Constitution or laws of the United States. See Kneipp v. Ted der , 95 F.3d 1199, 1204 (3d Cir. 1996). The first step is to “identify the exact contours of the underlying right said to have been violated” and to determine “whether the plaintiff has alleged a deprivation of a constitutional right at all.” County of
S acramento v. Lewis , 523 U.S. 833, 841 n.5 (1998).
We have carefully reviewed the record and discern no reversible error on the part
of the District Court in di smissing all of the claims set forth in t he amended complaint.
We address t he Agarwals’ argu ments on appeal in turn.
III. The Agarwals first argue that the District Court erred in dismissing their claims against D efendants Schuykill County Tax Claim Bureau, Mantura M. Gallagher, Robert S. Frycklund, Shelly K. Morrison, Russell T. Motsko, and De nise McGinley

- Gerchak (“the Schuykill Defendants”)

. The Agarwals repeatedly attempted to pay their delinquent5 real estate taxes with personal checks

. The Schuykill County Tax Claim Bureau returned
the Agarwals’ chec ks and notified them of the Bureau ’s p olicy of not accept ing personal checks for the payment of delinquent taxes

– only certified checks, cashier ’ s check s, money orders, or cash , if paid in person

. Ultimately, t he Agarwals’ property was liste d
and sold at a sheriff’s sale in order to satisfy the unpaid debt. The Agarwals claim that they have a constitutional right to pay their delinquent taxes by personal chec k

. 1

The Agarwals next argue that the District Court erred in dismissing their § 198 3
claims regarding municipal water services . In their amended complaint, t he Agarwals alleged that Defendants Hazel Township, Hazel Township Supervisors, and/or Hazelton City Water Authority (“the Hazel Defendants”) violated their civil rights by conspiri ng to prevent the water from being turned off at their property in an attempt to force the them to pay a higher utility bill

. However, they do not to cite any constitutional or statutory authority providing that right , and we are not aware of any

. I n the absence of an
identifiable constitution al violation, we agree with the District Court that the Agarwals failed to state a claim upon which relief could be granted.

2

1 The Agarwals argue on appeal that they submitted cashier’s checks rather than pe rsonal checks. However, we have reviewed copies of the checks that the Agarwals submitted and agree with the Defendants that those checks appear to be personal checks processed through the bank’s online bill payment system.

2 The Agarwals similarly alleg ed that Defendants Kline Township, Kline Township Supervisors, Kline Township Municipal Authority, Kline Township Police, and Francis Patton (“the Kline Defendants”) conspired to prevent the water from being turned off at their property. The Agarwals also alleged that those Defendants engaged in6 “ racketeering ” to stea l their money. We agree with the D istrict Cour t that the Agarwals’ amended complaint failed to a llege facts suggesting that the Hazel or Kline Defendants’
actions violated any rights guaranteed by the federal Constitution or statutes

. The Agarwals also failed to allege sufficiently a conspiracy to vi olate their rights. See Young
v. Kann , 926 F. 2d 1396, 1405 n.16 (3d Cir. 1991) (affirming dismissal of conspiracy claims based upon mere suspicion and speculation)

. 3 The Agarwals next argue that the District Court erred in dismissing their claims agains t Hazleton Area School District (“HASD”)

. The Agarwals alleged that HASD conspired with other Defendants in order to deceive the Agarwals into paying an
unfounded tax debt. The y further alleged that HASD violated their due process rights by selling their unpaid tax claims against the Agarwals to another company. We agree with
the District Court that the Agarwals’ conspiracy claim does not appear to be based in fact, but merely upon their own suspicion and speculation. Young , 926 F. 2d at 1405 n.16

. Ther efore, it was properly dismissed. We further agree that t he Agarwals fail ed to state a
viable constitutional claim against HASD , which is only liable under § 1983 for violations resulting from official municipal policy or custom. Monell v. Dep’ t of Soc.
Serv. , 436 U.S. 658, 694 (1978). The Agarwals did not allege any such violation. The Agarwals next argue that the Dis trict Court erred in dismissing their claim against the Schuykill Defendants for an alleged violation of their First Amendment

3 We also agree t hat the Agarwals’ conclusory allegations of racketeering were insufficient to survive a Rule 12(b)(6) motion

. Lum v. Bank of America , 361 F. 3d 217, 223

- 24 (3d Cir. 2004).7 right s
. 4

We affirm the District Court’s dismissal of the Agarwals’ access to co urts claim. To prevail on such a claim, a plaintiff must show that the denial of access caused actual injury; for instance, that he lost a “nonfrivolous” and “arguable” claim. Christopher v. Harbury , 536 U.S. 403, 415 (2002). As the District Court recog nized, the Agarwals
failed t o identify any such lost claim. Indeed , the record reflects that the Agarwals successfully file d a civil action in the Schuy kill County Court of Common Pleas challenging the tax sale shortly thereafter

. Having reviewed the Dis trict Court’s orders dismissing all of the Agarwals’ causes of action for failure to state a claim pursuant to Rule 12(b)(6) , and finding no reversible

error , we will affirm

. The y claimed that the Schuykill Defendants , specifically the Schuykill County Prothonotary’s Office , prevent ed them from filing a “Caveat” challenging the sale of their property. The Prothonotary’s Office refused to file the “Caveat” because it was not

a pleading authorized by the Pennsylvania Rules of Civil Procedure. The Agarwals argue
that their refusal to file the document amounted to a denial of their right to access the

courts.

4 With regard to this claim, the Agarwals added additional defendants Schuykill Cou nty’s Sheriff Department, Schuykill County Prothonotary’s Office, Schuykill Coun ty Court Administrator’s Office.