Opinions of the United
2006 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


12-7-2006

Douris v. Newtown Bor Inc
Precedential or Non-Precedential: Non-Precedential

Docket No. 06-2015




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"Douris v. Newtown Bor Inc" (2006). 2006 Decisions. Paper 119.
http://digitalcommons.law.villanova.edu/thirdcircuit_2006/119


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                                                              NOT PRECEDENTIAL

                    UNITED STATES COURT OF APPEALS
                         FOR THE THIRD CIRCUIT


                                   No. 06-2015
                                  _____________

                           JAMES GEORGE DOURIS,
                                       Appellant

                                         v.

NEWTOWN BOROUGH, INC.; ANTHONY C. WOJCIECHOWSKI, INDIVIDUAL &
OFFICIAL CAPACITY; COLLEEN ANN ROSENFELD, INDIVIDUAL & OFFICIAL
  CAPACITY; COREY HUFF, INDIVIDUAL & OFFICIAL CAPACITY; BRIAN
     STEVEN GREGG, INDIVIDUAL & OFFICIAL CAPACITY; SZERLAG,
      (UNKNOWN FIRST NAME), INDIVIDUAL & OFFICIAL CAPACITY
                    __________________________

                 On Appeal From the United States District Court
                    For the Eastern District of Pennsylvania
                       (E.D. of PA Civil No. 05-cv-02727)
                  District Judge: Honorable R. Barclay Surrick
                        ____________________________

                    Submitted Under Third Circuit LAR 34.1(a)
                               November 27, 2006

     Before: RENDELL, COWEN and VAN ANTWERPEN, Circuit Judges

                             (Filed: December 7, 2006)
                                ________________

                           OPINION OF THE COURT
                              _________________

PER CURIAM

    James Douris, proceeding pro se, appeals an order of the United States District
Court for the Eastern District of Pennsylvania denying his motion to proceed in forma

pauperis and dismissing his complaint pursuant to 28 U.S.C. § 1915(e)(2)(B). We will

affirm the District Court’s order in part and reverse in part.

       Douris filed a civil rights action against Newtown Borough and five Borough

police officers. In his complaint, Douris alleged that he is disabled, and that the Borough

police officers issued him parking tickets after he parked in a no parking zone adjacent to

his parents’ property. Douris claimed that in issuing the tickets the defendants violated

the Americans with Disabilities Act, 42 U.S.C. §§ 12101 et seq. (“ADA”), and his

constitutional rights to due process and equal protection. Douris filed a motion to

proceed in forma pauperis in lieu of paying the District Court’s fee for filing his

complaint.

       In denying Douris’ motion to proceed in forma pauperis, the District Court stated

that Douris had filed eight lawsuits in District Court since 1999, all of which were

determined to be without merit. Although Douris declared that he was unemployed and

without assets, the District Court concluded that his abuse of the judicial system

constituted “extreme circumstances” that justified denying leave to proceed in forma

pauperis. The District Court further concluded that, even if Douris was entitled to in

forma pauperis status, his complaint must be dismissed under 28 U.S.C. § 1915(e)(2)(B)

because his claims lacked an arguable basis in law or in fact. The District Court entered

an order denying the in forma pauperis motion and dismissing Douris’ complaint pursuant

to § 1915(e)(2)(B). This appeal followed.

                                              2
       We have jurisdiction pursuant to 28 U.S.C. § 1291. Deutsch v. United States, 

, 1083 (3d Cir. 1995). We review the District Court’s order for an abuse of

discretion. 

extent the District Court chose, applied, and interpreted legal

precepts, our standard of review is plenary. 

Circuit, leave to proceed in forma pauperis is based on a showing of

indigence. 

n.5. The court must review the affiant’s financial statement, and,

if convinced that he or she is unable to pay the court costs and filing fees, the court will

grant leave to proceed in forma pauperis. 

court considers whether the

complaint may be dismissed under § 1915(e)(2)(B). Id.1 As recognized by the District

Court, we have noted that “extreme circumstances” might justify denying an otherwise

qualified affiant leave to proceed in forma pauperis, but we have not delineated what

might constitute such circumstances. 

District Court erred in ordering both the denial of the motion for leave to

proceed in forma pauperis and the dismissal of the complaint under § 1915(e)(2)(B).

Once the District Court determined that in forma pauperis status was not warranted, the

District Court should have afforded Douris the opportunity to pay the filing fee before

dismissing his complaint for non-payment. See, e.g., In re Sindram, 

, 180

(1991) (per curiam) (denying in forma pauperis motion and requiring petitioner to pay the

docketing fee if he wished to have his petition considered on the merits). It is only when


  1
  When Deutsche was decided, 28 U.S.C. § 1915(d) set forth the standard for dismissal
now set forth in § 1915(e)(2)(B).

                                              3
in forma pauperis status is granted that it is necessary to determine whether dismissal of

the complaint is warranted under § 1915(e)(2)(B). See 

n.5.

       It is unnecessary, however, to remand this case to the District Court for further

proceedings.2 Douris’ financial circumstances qualified him for in forma pauperis status.

Thus, we reverse the District Court’s order to the extent it denied Douris’ in forma

pauperis motion. As discussed below, dismissal of the complaint was proper under

§ 1915(e)(2)(B).3

       A complaint may be dismissed as “frivolous” under § 1915(e)(2)(B) where it lacks

an arguable basis either in law or in fact. Neitzke v. Williams, 

, 325 (1989).

Douris’ complaint lacks an arguable legal basis. Douris complained that the Borough

defendants deprived him of his right to freely park his car. As recognized by the District

Court, there is no such federally-protected right.

       Douris also claimed a violation of his right to procedural due process based upon

the fines the Borough imposed for parking violations. However, contrary to his claim,

Douris alleged in his complaint that he was able to contest the parking citations he

received. See Mathews v. Eldridge, 

, 333 (1976) (stating that due process

requires some form of a hearing before an individual is deprived of a property interest).


  2
   See Narin v. Lower Merion Sch. Dist., 

, 333 n.8 (3d Cir. 2000) (noting
the Court may affirm on a ground other than that relied on by the district court).
  3
   Because we conclude that dismissal was warranted on this basis, we do not decide
whether Douris’ numerous lawsuits constitute “extreme circumstances” that justify
denying in forma pauperis status.

                                              4
In addition, Douris’ equal protection claim, which appears to be based upon an allegation

that other parts of the Borough allowed unlimited parking, is without a legal basis.

       Finally, Douris alleged that the Borough violated the ADA by not providing a

handicapped parking space next to his parents’ property. The ADA, however, does not

give Douris the right to park his car in an area that would not be available to him if he

were not disabled. See Kornblau v. Dade County, 

, 194 (11th Cir. 1996).4

       The District Court correctly determined that Douris’ complaint should be

dismissed under § 1915(e)(2)(B). Accordingly, we will affirm the District Court’s order

on this basis.




  4
    Absent a non-frivolous federal claim, the District Court properly declined to exercise
jurisdiction over the state law claims contained in Douris’ complaint. See 28 U.S.C.
§ 1367(c)(3).

                                              5