PSM-202 NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

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No. 11-1096

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MADHU AGARWAL; DR. ANIL AGARWAL,

Appellants

v.

SCHUYLKILL COUNTY TAX CLAIM BUREAU; MANTURA M. GALLAGHER; 

ROBERT S. FRYCKLUND; 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; STATE OF 

PENNSYLVANIA THROUGH ATTORNEY GENERAL; HAZLETON CITY 

AUTHORITY WATER DEPARTMENT; HAZEL TOWNSHIP THROUGH 

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

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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

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Submitted Pursuant to Third Circuit LAR 34.1(a)

August 25, 2011

Before: AMBRO, HARDIMAN and VAN ANTWERPEN, Circuit Judges

(Opinion filed: August 26, 2011)
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OPINION

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PER CURIAM

Dr. Anil Agarwal and his wife Madhu Agarwal (“the Agarwals”), proceeding pro 

se, appeal from the July 14, 2010 and December 15, 2010 orders of the District Court 

granting Defendants’ motions to dismiss their civil rights action. We will affirm.

II.

In October 2009, the Agarwals filed a civil rights action 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

Defendants, along with John and Jane Doe Defendants numbers twenty-seven to fiftyone. After the named Defendants were served, all but one joined in one of several 

motions to dismiss. The Agarwals then filed a motion to amend their complaint, which 

the District Court granted. In light of the Court’s order granting the motion to amend, 

Defendants’ motions to dismiss were denied as moot. 

The Agarwals subsequently filed their amended complaint. In the first two counts 

of the amended complaint, the Agarwals claimed that they were denied their 

constitutional right to pay their delinquent real estate taxes by personal check. In counts

three and four, they claimed 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 count five, they claimed that they were not given 
3

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 challenging the sale 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 Rules 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 Magistrate Judge 

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 

recommendation of the Magistrate Judge and dismissed the Agarwals’ claims against 

those two Defendants.

The case was then recommitted to the Magistrate Judge for further proceedings on 

the remaining dispositive motions. The Magistrate Judge 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 dismissed 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). 

Atkinson 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 and 
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interpreted in the light most favorable to the plaintiffs, and all inferences must be drawn 

in favor of them.” McTernan v. City of York, 577 F.3d 521, 526 (3d Cir. 2009) (internal 

citation and quotation marks omitted). To withstand a Rule 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. See 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. Tedder, 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 

Sacramento 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 dismissing all of the claims set forth in the amended complaint. 

We address the Agarwals’ arguments on appeal in turn.

III.

The Agarwals first argue that the District Court erred in dismissing their claims 

against Defendants Schuykill County Tax Claim Bureau, Mantura M. Gallagher, Robert 

S. Frycklund, Shelly K. Morrison, Russell T. Motsko, and Denise McGinley-Gerchak 

(“the Schuykill Defendants”). The Agarwals repeatedly attempted to pay their delinquent 
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real estate taxes with personal checks. The Schuykill County Tax Claim Bureau returned 

the Agarwals’ checks and notified them of the Bureau’s policy of not accepting personal 

checks for the payment of delinquent taxes – only certified checks, cashier’s checks,

money orders, or cash, if paid in person. Ultimately, the Agarwals’ property was listed 

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 check.

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The Agarwals next argue that the District Court erred in dismissing their § 1983 

claims regarding municipal water services. In their amended complaint, the Agarwals 

alleged that Defendants Hazel Township, Hazel Township Supervisors, and/or Hazelton 

City Water Authority (“the Hazel Defendants”) violated their civil rights by conspiring 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. In the absence of an 

identifiable constitutional 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 

personal 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 alleged 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 in 
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“racketeering” to steal their money. We agree with the District Court that the Agarwals’ 

amended complaint failed to allege 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 violate 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 

against 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. They 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. 

Therefore, it was properly dismissed. We further agree that the Agarwals failed 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 District Court erred in dismissing their claim 

against the Schuykill Defendants for an alleged violation of their First Amendment 

 3 We also agree that 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).
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rights.

4

We affirm the District Court’s dismissal of the Agarwals’ access to courts 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 recognized, the Agarwals

failed to identify any such lost claim. Indeed, the record reflects that the Agarwals 

successfully filed a civil action in the Schuykill County Court of Common Pleas 

challenging the tax sale shortly thereafter.

Having reviewed the District 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.

 They claimed that the Schuykill Defendants, specifically the Schuykill County 

Prothonotary’s Office, prevented 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 

County’s Sheriff Department, Schuykill County Prothonotary’s Office, Schuykill 

County Court Administrator’s Office.