Filed: Jan. 26, 2018
Latest Update: Mar. 03, 2020
Summary: NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _ No. 16-3974 _ RUBEN M. COLLAZO, Appellant v. MOUNT AIRY NO. 1 LLC; LOUIS DENAPLES; DONALD SHIFFER, III; JOHN CULETSU; MATTHEW MAGDA; LIANNE ASBURY; TREVOR TASETANO; COMMONWEALTH OF PENNSYLVANIA; PENNSYLVANIA GAMING CONTROL BOARD; MATT BERNAL; JOSEPH SCALZO; KATHLEEN M. STAY; LISA ZOTI; "FLUFFY" _ On Appeal from the United States District Court for the Middle District of Pennsylvania (D.C. Civil Action No. 3-16-cv-00982) Dist
Summary: NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _ No. 16-3974 _ RUBEN M. COLLAZO, Appellant v. MOUNT AIRY NO. 1 LLC; LOUIS DENAPLES; DONALD SHIFFER, III; JOHN CULETSU; MATTHEW MAGDA; LIANNE ASBURY; TREVOR TASETANO; COMMONWEALTH OF PENNSYLVANIA; PENNSYLVANIA GAMING CONTROL BOARD; MATT BERNAL; JOSEPH SCALZO; KATHLEEN M. STAY; LISA ZOTI; "FLUFFY" _ On Appeal from the United States District Court for the Middle District of Pennsylvania (D.C. Civil Action No. 3-16-cv-00982) Distr..
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 16-3974
___________
RUBEN M. COLLAZO,
Appellant
v.
MOUNT AIRY NO. 1 LLC; LOUIS DENAPLES; DONALD SHIFFER, III;
JOHN CULETSU; MATTHEW MAGDA; LIANNE ASBURY;
TREVOR TASETANO; COMMONWEALTH OF PENNSYLVANIA;
PENNSYLVANIA GAMING CONTROL BOARD; MATT BERNAL; JOSEPH
SCALZO; KATHLEEN M. STAY; LISA ZOTI; "FLUFFY"
____________________________________
On Appeal from the United States District Court
for the Middle District of Pennsylvania
(D.C. Civil Action No. 3-16-cv-00982)
District Judge: Honorable Robert D. Mariani
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
January 23, 2018
Before: SHWARTZ, KRAUSE and FISHER, Circuit Judges
(Opinion filed: January 26, 2018)
___________
OPINION *
___________
PER CURIAM
*
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
Pro se appellant Ruben Collazo appeals from the District Court’s order dismissing
his complaint. For the following reasons, we will affirm.
I.
A. Background
Collazo is the founder of a faith-based internet forum for gambling addicts. On
December 17, 2010, he was allegedly seen distributing business cards to advertise his
website at the Mount Airy Casino and Resort in Paradise Township, Pennsylvania (the
“Casino”). By letter dated December 24, 2010, the director of Casino security, Lianne R.
Asbury, notified Collazo that he was no longer permitted on Casino property. Asbury
advised Collazo that he would be subject to eviction and arrest for criminal trespass
should he return to the Casino.
Collazo was seen on the property again on or about November 29, 2013, and was
arrested and charged with criminal trespass under 18 Pa. Cons. Stat. Ann. § 3503(a)(1)(i).
Collazo was found guilty in the Court of Common Pleas of Monroe County. The
Superior Court of Pennsylvania subsequently affirmed the conviction. Commonwealth v.
Collazo, No. 3210 EDA 2014 (Pa. Super. Ct. Oct. 7, 2015).
Collazo was arrested again at the Casino on June 20, 2014. It appears that three
Casino staff members (Joseph Scalzo, Kathleen M. Stay, and an individual known as
“Fluffy”) and one patron (Lisa Zoti) gave witness statements to the police about the
alleged trespass. Collazo was initially charged with another criminal trespass offense
2
arising from this incident, but the charge was later reduced to the lesser summary offense
of simple trespass under § 3503(b.1)(1)(i), and the trial court ultimately ordered a nolle
prosequi of that charge.
Meanwhile, Collazo filed a declaratory judgment action against the Casino in the
Court of Common Pleas of Monroe County. 1 Collazo asserted that his exclusion from
the Casino violated his constitutional rights to due process and free speech, and was
impermissible under § 1515 of the Pennsylvania Race Horse Development and Gaming
Act (the “Gaming Act”), 4 Pa. Cons. Stat. Ann. §§ 1101–1904. The trial court
determined that: (1) Collazo could not prevail on his constitutional claims because the
Casino was not a state actor; and (2) the Casino acted within its authority under § 1515 in
excluding him from its facility. 2 The Pennsylvania Superior Court affirmed. Collazo v.
1
In addition to the declaratory judgment action, Collazo filed a complaint with the
Gaming Control Board seeking redress for his exclusion from the Casino. The Gaming
Control Board concluded that the Casino was permitted to exclude him pursuant to 4 Pa.
Cons. Stat. § 1515, set forth in note 2 below.
2
Section 1515 provides:
A licensed gaming entity may exclude or eject from its licensed facility or
deny access to interactive gaming any person who is known to it to have
been convicted of a misdemeanor or felony committed in or on the
premises of any licensed facility. Nothing in this section or in any other
law of this Commonwealth shall limit the right of a licensed gaming entity
to exercise its common law right to exclude or eject permanently from its
licensed facility or permanently deny access to its interactive gaming any
person who disrupts the operations of its premises or its interactive gaming,
threatens the security of its premises or its occupants or is disorderly or
intoxicated or who threatens the security of its licensed facility or the area
of a licensed facility where interactive gaming operations are managed,
3
Mount Airy #1, LLC, No. 175 C.D. 2015, 2015 WL 5670831, at *4 (Pa. Commw. Ct.
Sept. 10, 2015) (per curiam) (not precedential).
B. District Court proceedings
In May 2016, Collazo commenced this federal civil rights action in the United
States District Court for the Middle District of Pennsylvania against eleven private
parties, including: the Casino; its former owner, Louis DeNaples; Vice President of
Operations, Matthew Magda; Security Director Asbury; Security Supervisor Trevor
Tasetano; Casino attorney Donald Shiffer, III; Casino employee John Culetsu; Casino
staff members Scalzo, Stay, and Fluffy; and patron Zoti. Collazo also named as
defendants the Commonwealth of Pennsylvania, the Gaming Control Board, and Monroe
County Assistant District Attorney Matt Bernal.
In the federal complaint, Collazo again claimed that his exclusion from the Casino
violated his constitutional rights. Collazo further claimed that the defendants’ actions
violated his rights under Titles II and III of the Civil Rights Act of 1964 and the
Pennsylvania Human Relations Act, 43 Pa. Cons. Stat. Ann. § 953. He also set forth
claims for malicious prosecution, false arrest, and retaliation. 3 He also asked the District
Court to declare the Casino and “all gaming floors” in Pennsylvania state actors, and to
declare that the Gaming Act fails to provide constitutional protections in violation of the
administered or controlled.
3
By way of relief for these claims, Collazo sought compensatory and punitive damages
in excess of $500,000.
4
Bill of Rights as well as Article I, Sections 1, 3, 7, 20, and 26 of the Pennsylvania
Constitution.
The matter was referred to a Magistrate Judge who recommended that the
complaint be dismissed for failure to state a claim under 28 U.S.C. § 1915(e)(2)(B).
Specifically, the Magistrate Judge recommended that Collazo’s claims be dismissed on
the grounds that: the Commonwealth and the Gaming Control Board were entitled to
immunity under the Eleventh Amendment; ADA Bernal was immune from suit for his
role in prosecuting Collazo’s criminal case; Collazo’s challenges to the Gaming Act were
precluded under the doctrines of res judicata and collateral estoppel; Collazo’s claims for
malicious prosecution and unlawful arrest were barred under Heck v. Humphrey, 512
U.S. 477, 483 (1994); 4 and any claims that were previously decided in state court were
barred under the Rooker-Feldman doctrine.
Collazo filed objections to the Magistrate Judge’s Report and Recommendation,
but the District Court overruled them on the grounds that they were both meritless and
also failed to address the Magistrate’s Report and Recommendation. The District Court
adopted the Report and Recommendation and dismissed the complaint. Collazo
appealed.
II.
4
The criminal trespass case was still pending at the time of the Magistrate Judge’s Report
and Recommendation.
5
We have jurisdiction under 28 U.S.C. § 1291. We exercise plenary review over
the dismissal of a complaint pursuant to 28 U.S.C. § 1915(e)(2)(B). See Allah v.
Seiverling, 229 F.3d 220, 223 (3d Cir. 2000).
III.
Having conducted that review, we see no error in the District Court’s decision
to dismiss the complaint under § 1915(a)(2)(B)(ii). For substantially the reasons
provided by the Magistrate Judge in his Report and Recommendation, we agree that
Collazo’s complaint failed to state a claim on which relief may be granted.
Collazo’s primary argument on appeal is that Magistrate Judge Carlson and
District Judge Mariani should have recused themselves from this matter in light of their
alleged relationship with defendant DeNaples. Because Collazo did not seek recusal in
the District Court, we review for only plain error the judges’ decisions not to recuse. See
Selkridge v. United of Omaha Life Ins. Co., 360 F.3d 155, 166–67 & n.16 (3d Cir. 2004).
We see no such error. Pursuant to 28 U.S.C. § 455(a), a magistrate or district
court judge must recuse himself “in any proceeding in which his impartiality might
reasonably be questioned.” 28 U.S.C. § 455(a); see also In re Prudential Ins. Co. of Am.
Sales Practice Litig. Agent Actions, 148 F.3d 283, 343 (3d Cir. 1998). Collazo does not
direct us to any evidence in the record of impartiality. In fact, Collazo’s argument in
support of recusal is borrowed entirely from another litigant’s contention that District
Judge Mariani should have recused himself in an unrelated case involving defendant
6
DeNaples. In the absence of any evidence of impartiality in this case, we see no plain
error in the Magistrate Judge’s or District Judge’s decision not to recuse.
On appeal, Collazo also continues to press his constitutional and statutory
challenges to the Casino’s right to exclude him under 4 Pa. Cons. Stat. Ann. § 1515. We
agree with the Magistrate Judge, however, that principles of res judicata bar these
challenges, as the Commonwealth Court previously addressed them in Collazo’s
declaratory judgment action against the Casino. 5 See McCarter v. Mitcham, 883 F.2d
196, 199 (3d Cir. 1989) (applying Pennsylvania law of res judicata to determine whether
federal-court claims were barred); Balent v. City of Wilkes-Barre,
669 A.2d 309, 313 (Pa.
1995) (providing that, under Pennsylvania law, “[a]ny final, valid judgment on the merits
by a court of competent jurisdiction precludes any future suit between the parties or their
privies on the same cause of action”). To the extent that Collazo did not previously assert
these claims against the Commonwealth, the Magistrate Judge correctly concluded that
the Commonwealth is, in any event, entitled to Eleventh Amendment immunity. See
Kimel v. Fla. Bd. of Regents,
528 U.S. 62, 73 (2000); 42 Pa. Cons. Stat. Ann. § 8521(b).
In addition, Collazo cannot sue the Gaming Control Board under § 1983 because it is not
a “person.” See Madden v. N.J. State Parole Bd.,
438 F.2d 1189, 1190 (3d Cir. 1971).
5
It was permissible in this case for the Magistrate Judge and District Court to apply res
judicata at the screening stage. See Arizona v. California,
530 U.S. 392, 412 (2000);
Gleash v. Yuswak,
308 F.3d 758, 760-61 (7th Cir. 2002).
7
Lastly, while Collazo appears to have raised several additional constitutional
challenges concerning the Gaming Control Board’s role in enforcing the Gaming Act, he
lacks standing to do so. See Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC),
Inc., 528 U.S. 167, 180 (2000) (providing that, in order to establish Article III standing, a
plaintiff must show, among other things, that he “has suffered an ‘injury in fact’ that is
(a) concrete and particularized and (b) actual or imminent, not conjectural or
hypothetical”). All of Collazo’s challenges concern § 1514 of the Gaming Act and its
associated regulations. See 4 Pa. Cons. Stat. Ann. § 1514 (directing the Gaming Control
Board to establish, by regulation, a list of persons prohibited from casinos and standards
for exclusion). Collazo was not, however, excluded from the Casino under § 1514, and
he does not allege that he was otherwise injured as a result of the Gaming Control
Board’s actions pursuant to this provision.
IV.
We have considered Collazo’s remaining arguments on appeal and conclude that
they are meritless. Accordingly, we will affirm the District Court’s order dismissing the
complaint. 6
6
Any amendment to the complaint would have been futile. See Grayson v. Mayview
State Hosp., 293 F.3d 103, 114 (3d Cir. 2002).
8
