Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


10-31-2008

Ferrone v. Onorato
Precedential or Non-Precedential: Non-Precedential

Docket No. 07-4299




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                                              NOT PRECEDENTIAL

        UNITED STATES COURT OF APPEALS
             FOR THE THIRD CIRCUIT


                       No. 07-4299


                ROCK FERRONE;
       ROCK AIRPORT OF PITTSBURGH, L.L.C,

                                                   Appellants

                            v.

       DAN ONORATO, individually and officially;
       DENNIS DAVIN, individually and officially;
              ALLEGHENY COUNTY


      On Appeal from the United States District Court
          for the Western District of Pennsylvania
                    (D.C. No. 05-cv-00303)
    Chief District Judge: Honorable Donetta W. Ambrose
      Magistrate Judge: Honorable Francis X. Caiazza


        Submitted Under Third Circuit L.A.R. 34.1(a)
                  on September 12, 2008



Before: SLOVITER, FUENTES and ALDISERT, Circuit Judges

                 (Filed: October 31, 2008)



                OPINION OF THE COURT
ALDISERT, Circuit Judge.

       The District Court for the Western District of Pennsylvania did not err in accepting

the Report and Recommendations of the Magistrate Judge and in ordering summary

judgments in the underlying 42 U.S.C. § 1983 action in favor of Dan Onorato, Chief

Executive of Allegheny County, Pennsylvania; Dennis Davin, the County’s Director of

Economic Development; and the County itself.

       The District Court correctly determined that Rock Ferrone and Rock Airport of

Pittsburgh, L.L.C. (“RAP”) failed to meet the burden of showing that they were denied

civil rights assured by the petition clause of the First Amendment. See U.S. Const.

amend. I (“Congress shall make no law . . . abridging . . . the right of the people . . . to

petition the Government for a redress of grievances.”). Nor did the District Court err in

similarly treating Appellants’ claims under the Fourth Amendment and the due process

and equal protection clauses of the Fourteenth Amendment or exceed its discretion in

denying Appellants’ motion to amend. Accordingly, we will affirm the orders of the

District Court dated June 13, 2006, and October 9, 2007.

       Because we write only for the parties who are familiar with the facts and the

procedures in the District Court, we will truncate our discussion.1


       1
         This Court has jurisdiction to hear this appeal pursuant to 28 U.S.C. § 1291. Our
review of a district court’s grant of summary judgment is plenary. Johnson v. Knorr, 

, 81 (3d Cir. 2007). Applying the same test used by the District Court, we will
affirm if, drawing all inferences in favor of the nonmoving party, we agree that “there is
no genuine issue as to any material fact and that the moving party is entitled to a
judgment as a matter of law.” Rule 56(c), Federal Rules of Civil Procedure. The “mere

                                               2
                                            I.

       In late 2004, in response to complaints from his staff in the Economic

Development Department, Dennis Davin instructed the County Division of Computer

Services (“DCS”) to block his department from receiving automated, unsolicited emails

sent from the address “press@rock-port.com.” In response, DCS placed a “spam” block

on the domain name “@rock-port.com.” The spam filter had the unintended effect of

preventing delivery of any email originating from that domain to all County email

addresses, blocking email not only from “press@rock-port.com” but also communication

from Ferrone’s personal email address. From January 4, 2005, to February 8, 2005, a total

of fourteen emails sent from the “@rock-port.com” domain to County email addresses

were blocked before the situation was discovered by Ferrone and Davin and the block

lifted. Throughout the same time period, Ferrone and RAP, the company for which he is

the managing partner and president, were engaged in an ongoing dispute and negotiations

with the County over contested economic development funding, the particulars of which

are the subject of a separate companion appeal filed by the Appellants.

                                            II.




existence of a scintilla of evidence” in support of the nonmoving party’s position is
insufficient to defeat a motion for summary judgment; the evidence must be “such that a
reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty
Lobby, 

, 248, 252 (1986).
       We review the District Court’s denial of Ferrone’s request for leave to amend for
abuse of discretion. Winer Family Trust v. Queen, 

, 325 (3d Cir. 2007).

                                            3
       In the District Court, Ferrone and RAP (collectively “Ferrone”) based their First

Amendment right to petition claim on the theory that “the Constitution is indubitably

implicated when a state official blocks, intercepts, and/or redirects any email sent by a

private party that was intended for other elected officials.” Pls. Opp’n Br. at 3 (Aug. 9,

2007). We reject any generalization that the mere fact of blocking alone, regardless of

intent, rises to a constitutional violation, and we resist Ferrone’s attempt to plump up a

specious claim by invoking the First Amendment. “Negligent official conduct does not

instantly become actionable under § 1983 because it is termed an infringement of the

right to petition rather than a violation of due process.” Pink v. Lester, 

, 76 (4th

Cir. 1995). On the evidence presented in this case, no reasonable factfinder could have

found a violation of Ferrone’s First Amendment Rights.

                                              A.

       “At its core, the right of petition protects a personal right to bring complaints about

public policy directly to officers of the government.” Ronald J. Krotoszynski & Clint A.

Carpenter, The Return of Seditious Libel, 55 UCLA L. Rev. 1239, 1246 (2008).

Substantive rights under the petition clause are rarely litigated, but “the right to petition is

cut from the same cloth as the other [First Amendment] guarantees,” McDonald v. Smith,

, 482 (1985), and deprivation of the right to petition mirrors the intent

requirements of due process analysis. See 

(extending Supreme

Court holding that an official’s negligent act does not implicate the due process clause to



                                               4
the First Amendment right to petition because, “[j]ust as ‘deprivation’ [in the Fourteenth

Amendment] suggests an intentional denial, an ‘abridgement’ [under the First

Amendment] connotes a conscious act . . . and thus both should be read to imply the same

degree of intent.”) (referencing holding of Daniels v. Williams, 

(1986)).

Accordingly, to establish a claim under the petition clause, Ferrone had to show that the

Appellees acted “with reckless or intentional indifference to his constitutional rights”;

mere negligence will not suffice. Woods v. Lemonds, 

, 1109 (E.D. Mo.

1992), aff'd, 

(8th Cir. 1993) (table).

                                             B.

       In addition, the Magistrate Judge recognized that Ferrone was required to establish

actual harm or prejudice resulting from the alleged deprivation of rights. This Court has

recognized this precept most obviously through our discussion of “access to court” claims

brought under the petition clause. See Anderson v. Davila, 

, 161 (3d Cir.

1997) (“an individual’s constitutional right of access to court is protected by the First

Amendment’s clause granting the right to petition the government for grievances”)

(citations omitted) and Jones v. Brown, 

, 359 (3d Cir. 2006) (claim for

denial of court access requires evidence of actual injury in the form of a consequential

infringement of the protected right) (citation omitted), cert. denied, __ U.S. __, 

(2007).

                                             C.



                                              5
       Ferrone could not meet these burdens. Rather, Ferrone’s pleadings consisted of a

flurry of unsubstantiated allegations of conspiracy on the part of Davin and Onorato to

deprive him of the ability to communicate with County elected officials in retaliation for

his financial disputes with the County and outspoken criticism of official policies. The

Magistrate Judge properly recognized that “[m]uch of [Ferrone’s] briefing consists of

alarmist exaggeration bearing no relationship to the facts learned in discovery.” Ferrone

v. Onorato, No. 05-303, slip op. at 11 (W.D. Pa. Sept. 6, 2007) (“Mag. R&R”). The facts

showed that Davin requested that DCS block email from “press@rock-port.com” from

receipt by his staff only and that Onorato had no involvement in that decision whatsoever.

There was no evidence produced by Ferrone in the District Court that would contradict

the Appellees’ explanation of how and why the domain “@rock-port.com” was added to

the County spam filter–any conclusion to the contrary would be raw conjecture.

       In short, there was no evidence from which a factfinder could reasonably conclude

that Onorato or Davin intended to violate Ferrone’s First Amendment rights or acted with

reckless indifference to those rights. Negligence, not nefarious scheming, was the culprit

here, and such negligent ministerial action falls short of the affirmative abuse of

governmental power against which the Constitution guards.

                                             D.

       Moreover, there is a complete dearth of evidence to support the assertion that

Ferrone suffered actual prejudice or harm as a result of the email block. The Magistrate

Judge reviewed the evidence developed below and wrote:

                                              6
          Ferrone’s greatest concern, that he was denied access to
          County Council, has no basis in fact. . . . Aside from his test
          message to Council members the day before DCS lifted the
          block, the record reveals only one blocked email sent to a
          Council member, Mr. Gastgeb, on January 11, 2005. . . .
          When Mr. Gastgeb did not reply, [Ferrone] telephoned him
          but received no response. . . . This surely was no fault of
          [Onorato and Davin], and there is no evidence that the email
          blockage had any discernable effect on [Ferrone’s] Airport
          project. . . . The evidence also shows that, the blocked emails
          notwithstanding, Ferrone remained in regular contact with
          both Council members and Davin’s department. . . . In sum,
          [Ferrone] makes far too much of the Defendants’ inadvertent,
          if negligent, blocking of fourteen emails over the period of
          approximately five weeks.
Mag. R&R at 13-14.

       The District Court thus did not err when it concluded that there were no facts that

would support a claim of actual harm or prejudice as a result of Appellants’ emails being

inadvertently blocked. Cf. 

(“The inadvertent misrouting of a request

form simply does not implicate the fundamental democratic principle of the right to

petition; namely, that a republican government not turn a deaf ear to its citizenry.”).



                                             III.

       Likewise, Ferrone’s First Amendment retaliation claim fails for want of factual

basis. As the Magistrate Judge’s recommendation concluded:

              Perhaps the simplest way of putting the [retaliation] issue to
              rest is to reiterate the court’s prior conclusions, namely that
              the Defendants had no knowledge or intention of blocking
              Ferrone’s personal emails, nor did they exhibit a reckless
              disregard for his constitutional rights. The Defendants did not


                                              7
            “retaliate” against the Plaintiff, and this theory is without
            merit.
Mag. R&R at 14-15 n.8.

       A government actor can only “retaliate” knowingly. In this instance, Onorato and

Davin had neither the intent to block so broadly nor knowledge that Ferrone’s emails

were being blocked other than those from “press@rock-port.com,” therefore, there could

have been no retaliation.

                                             IV.

       Ferrone further failed to identify sufficient evidence and legal authority in support

of his due process, equal protection, and Fourth Amendment causes of action. To state a

“class of one” equal protection claim, Ferrone needed to “allege[] that he has been

intentionally treated differently from others similarly situated and that there is no rational

basis for the difference in treatment.” Village of Willowbrook v. Olech, 

,

564 (2000) (per curiam). “[A]t the very least, to state a claim under that theory, a plaintiff

must allege that (1) the defendant treated him differently from others similarly situated,

(2) the defendant did so intentionally, and (3) there was no rational basis for the

difference in treatment.” Hill v. Kutztown, 

, 239 (3d Cir. 2006). Ferrone

presented no evidence that other entities who sent automated, unsolicited emails to

County email addresses were treated differently. Furthermore, Appellees established a

rational basis–staff complaints about receiving unsolicited mass emails–for seeking to

block email from “press@rock-port.com.”



                                              8
       Nor did Ferrone provide evidence that would lead a reasonable factfinder to

conclude that Appellees conducted an unreasonable search or seizure under the Fourth

Amendment when they intercepted emails intended for other members of the County

government, or that the email blocking was done for the purpose of depriving him of

property interests in violation of due process. At hearing on summary judgment and

before us, Ferrone cites no compelling evidence or authority for these contentions.

                                           V.

       Rule 15(a) of the Federal Rules of Civil Procedure provides that leave to amend

shall be freely given “when justice so requires.” However, the decision to grant or deny

leave is, in the first instance, within the discretion of the court. Foman v. Davis, 

, 182 (1962). Leave may be denied in the presence of “undue delay, bad faith or

dilatory motive on the part of the movant, repeated failure to cure deficiencies by

amendments previously allowed, undue prejudice to the opposing party by virtue of

allowance of the amendment, futility of amendment, etc.” 

       The District Court did not exceed its discretion when it denied as moot Ferrone’s

motion for leave to amend. Ferrone sought leave to amend his complaint on September

25, 2007, after the Magistrate Judge had filed his Report and Recommendation on

September 6, 2007, recommending that the complaint be dismissed. It was well within the

District Court’s discretion to deny Ferrone’s motion under these circumstances, especially

given that the matter to be added to the complaint already had been considered by the

Magistrate Judge in ruling on the motion for summary judgment. Cf. Roberts v. Ariz. Bd.

                                                9
of Regents, 

, 798 (9th Cir. 1981) (motion to amend pleadings denied as

prejudicial when offered at “the eleventh hour” after discovery nearly complete and

motion for summary judgment pending).

                                         *****

       We have considered all contentions raised by the parties and conclude that no

further discussion is necessary.

       The Orders of the District Court will be affirmed.




                                            10